We are up to day 10 of the Novell v. Microsoft antitrust trial transcripts, so we are about a third of the way through. Today starts with Robert Frankenberg back on the stand, because cross examination was stopped before he was done on the stand
the day before. After his extended testimony, Novell played three video deposition excerpts, those of James Allchin,
Douglas Henrich, and
Steven Sinofsky, one of the ones who just gave the demo about Microsoft's new tablet/PC named Surface. Well, the alleged new tablet. We'll see. This is Microsoft, after all.

I also have received the transcript of the June 7, 2012 hearing on Microsoft's motion to win by judgment as a matter of law, its effort to avoid a second jury trial. We missed the hearing, because the parties asked to change the date, and the judge didn't tell the public. I'm deeply immersed in the transcript now -- it's 261 pages, if you can believe it -- but I can't publish it now. I will when the court lifts the hold. Meanwhile, you can read the trial transcript, and I'll try to swing back by and let you know what arguments at the motion hearing relate to the testimony of this day and every day, after I fully digest it.

I've read several places where I thought as I read it, "Wait, that's not how I remember the testimony," and that's been so for Microsoft's arguments and statements by the judge, but I want to parse it out very carefully, before I say much more. I consider it a public service to make sure this trial is not handled away from the public eye.

Once again, you can find all the trial transcripts from the jury trial listed as PDFs
here.

***************************

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

Mr. Wheeler, I confirmed and I will sit next
Friday, so you can make your schedule --

MR. WHEELER: Thank you. I will take care of
that.

THE COURT: Okay. I understand there is an
exhibit issue.

MR. JOHNSON: Yes, Your Honor. Good morning.

THE COURT: Good morning.

MR. JOHNSON: Counsel approached me this morning
and indicated that he intends to use what has been marked
Defendant's Exhibit 614-A. I guess I should hand it up to
you --

THE COURT: Sure.

MR. JOHNSON: -- so you can see what we're talking
about. This is one of those DOJ inquiry documents that Your
Honor has heretofore not allowed people to use.

Two things --

THE COURT: Let me read it.

MR. JOHNSON: Sure.

THE COURT: Okay. Go ahead.

MR. JOHNSON: Two things. One, of course,

1163

apparently, despite the arguments the other day, Microsoft
intends to get into the issue of bugs, which I think is
unfortunate. There is going to be a frolicking detour with
respect to the issues in this case. Obviously I understand
why they want to use this doc, because Mr. Bradford states
that the bugs have something to do with the new products,
which they didn't, but I understand why they want to use it.

The other thing is, however, they have taken this
doc and redacted out of the bottom the Department of Justice
in the paragraph down there, which, as you will note,
indicates that Novell was approached by the Department of
Justice. We had that conversation awhile ago. We didn't
run to the principal, the principal came to us and asked for
our concerns about Microsoft's conduct during that period of
time. So I don't think that if they are allowed to use this
at all they get to redact who is making the inquiry here,
the Department of Justice.

I also think, Your Honor, that out of fairness if
they are allowed to get into our reports to the Department
of Justice, we certainly should be permitted to make the
jury aware that we complained about the issues that are in
suit here, because that is not fair for them to place a
document in front of the jury that said we complained about
bugs, and for there to be a suggestion that we didn't
complain about the manner that is in dispute here.

1164

So that is all I have, Your Honor.

THE COURT: Okay.

MS. NELLES: Good morning, Your Honor.

First of all, I just want to note that this
document directly contradicts the DX-6 arguments we heard
yesterday about whether or not these bugs related to the
prior version or the current version.

I would also note that Mr. Frankenberg, who is
here, will be well prepared to address both of these
documents today. But we really just want to use, and I
think Mr. Johnson understands why, and that he understands
that it is relevant in this case, the top paragraph or top
two paragraphs. If it is going to make things easier we
don't need to use the bottom half. I redacted out the
Department of Justice to be consistent with what we have
done in this case, but what we would like to do and what I
think is fair to do, given the testimony to date, is to talk
to Mr. Frankenberg about the first two paragraphs in this
document.

THE COURT: Certainly as I read this document,
unless it is early in the morning -- the time of day has
nothing to do with it. My mind always does not work well.
I think this answers the debate from yesterday, because this
clearly says that the bug is related to the new product.
Rightly or wrongly, I guess, that is what it says.

1165

Is there some way you can get into this without
using the document?

MS. NELLES: I think if that is what Your Honor
would like us to do --

THE COURT: I think the best thing to do is don't
use the document and don't get into the redactions. I'll
wait and see how the evidence develops, but the fact of the
matter is that what this really does for me is to solidify
that you should be able to get into Exhibit 6.

MS. NELLES: Okay. Thank you, Your Honor. We'll
do it that way.

MR. JOHNSON: Your Honor, may I have that? That
is my copy.

THE COURT: Absolutely. I didn't say good morning
and I didn't give your document back.

Let's get the jury.

Mr. Frankenberg, this is probably a safe time to
have you come on up.

MR. FRANKENBERG: Yes, Your Honor.

(WHEREUPON, the jury enters the proceedings.)

THE COURT: Good morning, everyone. Thank you for
your usual promptness.

Mr. Tulchin.

MR. TULCHIN: Thank you, Your Honor.

CROSS-EXAMINATION (Cont.)

1166

BY MR. TULCHIN

Q: Mr. Frankenberg, good morning, sir.

A: Good morning.

Q: Yesterday I showed you Exhibit 636. I know you have a
lot of materials there, but you may remember that this was
the document concerning the notes that were taken about the
meeting between you and Mr. Gates and lots of other people
on January 10th, 1995. I asked you yesterday -- the notes
go on for something like eight pages, and they apparently
are notes taken by Dave Miller.

I asked you yesterday is there anything in here that
indicates that the subject of the namespace extension APIs
or undocumented calls was ever raised at the meeting. And
you said you had not had a chance to look at the entire
document.

Do you recall that?

A: I do, yes.

Q: Did you have a chance to look at it overnight?

A: I looked at it after you asked me about it.

Q: Is there anything in the document that you have been
able to spot that pertains in any way to undocumented calls
or to the namespace extension APIs?

A: I didn't see anything in the document, no.

Q: Can we agree then that at least insofar as this
document indicates, Novell didn't raise those subjects

1167

during the meeting with Microsoft, including Mr. Gates, on
January 10, 1995?

A: I think we could assume that that didn't happen when
Dave Miller was present. It may have been well at another
session with Mr. Gates.

Q: But it is not your testimony that you recall that
occurring?

A: No.

Q: Correct?

A: But I think this covers what Mr. Miller intended.
There may have been other sessions.

Q: There may have been other sessions, but if there were
you don't have any memory sitting here today of raising
those subjects?

A: No, I don't.

Q: Thank you, sir.

Now, yesterday on direct you spoke a little bit about
certain applications being cross-platformed.

Do you recall that?

A: I do, yes.

Q: PerfectOffice 3.0 was released in December of 1994,
correct?

A: Correct.

Q: And that was written for the Windows 3.1 platform,
right?

1168

A: Yes, it was.

Q: There was no version of PerfectOffice that was released
by Novell that was written for any other platform; is that
right?

A: No, not at that time. The intent was to start with
that. It was not released at that time.

Q: Okay. I think I have you, but let me ask you more
generally. From the time that Novell acquired WordPerfect
in June of 1994, until the time Novell sold WordPerfect to
Corel in 1996, Novell never released a version of
PerfectOffice that was written for any other platform except
Windows 3.1?

A: That is true.

Q: And is it also your understanding that when Corel
acquired WordPerfect, Corel released a version of
PerfectOffice for Windows 95?

A: They did release that, yes.

Q: And is it true, Mr. Frankenberg, that as far as you
know Corel never released any version of PerfectOffice for
any other platform except Windows?

A: I don't know what they did, sir, beyond releasing it
for Windows.

Q: Mr. Frankenberg, I'm going to hand you Defendant's
Exhibit 22.

The first page of Exhibit 22 is an e-mail dated April

1169

3rd, 1995 from Brad C, and I think there is evidence in the
case that that is Brad Chase at Microsoft, to, among others,
Mark Calkins.

Do you see that, sir?

A: I do, yes.

Q: And on the c.c. line it indicates that the e-mail was
also sent to B Frank.

Do you see that, sir?

A: I do, yes.

Q: And that was you as you said yesterday?

A: Correct.

Q: Do you recall having received this e-mail on or about
April 3rd, 1995?

A: Yes, I do.

Q: And this is an e-mail about the Windows logo program,
correct?

A: Correct.

Q: The logo program for Windows 95.

Mr. Chase's e-mail goes on for about two and a half
pages, but he is responding to an e-mail that Mr. Calkins
sent to him on March 6 of 1995. I refer you, sir, to page 3
of Exhibit 22.

A: I see that, yes.

Q: Right. Mr. Calkins' e-mail of March 6 went to Brad C,
Brad Chase, and also Brad Silverberg, Brad S.I. at

1170

Microsoft, and you were one of the people who got a copy of
that, correct?

A: Yes, I did.

Q: And you remember that e-mail as well?

A: Yes, I do.

Q: Mr. Frankenberg, am I correct that the e-mail that
begins on the third page from Mark Calkins was a request by
Novell to Microsoft that Microsoft change, for Novell's
benefit, the requirements of the Windows 95 logo program; is
that right?

A: I believe it asked for an exception to the program --

Q: Yes.

A: -- not necessarily, generally change the program.

Q: And Microsoft responded, and that is the e-mail that
starts on the first page from Mr. Chase, writing back to Mr.
Calkins, and with a copy to you and other people, and
Microsoft responded, and to cut through this three pages a
little bit the response was that we cannot make an exception
for Novell.

Is that fair?

A: That is what it says, yes.

Q: On the third page of Mr. Chase' e-mail there are two
paragraphs. One begins I would be glad to have a conference
call. Do you see that? And then there is one just below
that.

1171

A: Yes.

Q: And Mr. Chase of Microsoft is writing to Mr. Calkins
with a copy to you, and in effect saying that if you went to
talk about this further let us know and Brad Struss will be
glad to set up a call.

Do you see that, sir?

A: Yes. Yes, I do.

Q: Mr. Frankenberg, it is correct, it is not, that Novell
never responded to that invitation for a call?

A: I don't honestly know whether we responded or not.

Q: Well, is it fair to say, Mr. Frankenberg, that sitting
here today you have no recollection of Novell ever
responding?

A: I do not have a recollection of that.

Q: And as we said before this took place in April of 1995,
the e-mail at the top, responding to an e-mail in March of
'95, right?

A: Yes.

Q: And during that period, in March and April of '95,
Novell was well aware that if you wanted to speak to someone
at Microsoft about some issue or concern, or if Novell
wanted an exception from some requirement that you could
easily send an e-mail to Mr. Chase or Mr. Silverberg at
Microsoft?

A: Yes.

1172

Q: And both Mr. Chase and Mr. Silverberg were reasonably
high up in the organization, correct?

A: Correct.

Q: You had their e-mail addresses and you were getting
e-mails from -- at least this e-mail from Mr. Chase, right?

A: Yes.

Q: I think you testified yesterday that Mark Calkins was
one of the executives who was responsible for the business
applications group at Novell.

A: He was responsible for the business applications
division, yes, the business unit.

Q: Division. Thank you. Sorry, sir.

You also testified that had Novell been confronted with
a choice in 1994 or 1995 about which option to take, whether
to get out a product very fast by writing new versions of
your products to the Windows common file open dialogue, or
taking a much more difficult path and trying to write an
advanced file open dialogue, that a decision of that sort
would probably go to a group that included Mark Calkins?

A: Yes, that is correct.

Q: You also testified yesterday that you have no
recollection of ever being asked to make a decision or
provide your recommendation about which path to take?

A: I don't even recall ever being asked that, no.

Q: Right.

1173

And it is correct, is it not, sir, that as far as you
know there are no e-mails to Brad Chase or Brad Silverberg
or anyone else at Microsoft concerning the namespace
extension APIs?

A: I don't know of any.

Q: Could I ask you, sir, to look in Exhibit 22, the same
document in front of you, to the second to last page. And
right towards the bottom there is a heading that says
conclusion, if I could direct you to that. This is still
part of the e-mail that Mark Calkins of Novell wrote to
Mr. Chase and Mr. Silverberg on March 6, 1995.

Do you see that, sir?

A: Yes, I do.

Q: At the bottom do you see the conclusion, the second to
the last page?

A: Yes, sir.

Q: And right at the bottom it says we would like to
propose that we set up a conference call to discuss this
issue. This is before the e-mail that came back from
Mr. Chase, and then it says we will work through our Windows
95 contact, Brad Struss, to find a time, et cetera.

A: Yes.

Q: So you knew and Mr. Calkins knew in March and April of
1995 that Novell's Windows 95 contact was someone named Brad
Struss at Microsoft, correct?

1174

A: Well, certainly Mark Calkins knew that, yes.

Q: Right. But this e-mail went to you and you say you
remember getting it?

Q: Mr. Frankenberg, fair enough. You don't recall seeing
that, but certainly Mr. Calkins wrote it in his e-mail to
Chase and Silverberg?

A: Yes, he did. Certainly he knew and, as I said
yesterday, the name sounded familiar, but I don't recall
what Mr. Struss did.

Q: Yes, you did say that.

Now, Mr. Frankenberg, there was testimony earlier in
this case from Adam Harrall that he made some phone calls to
people at Premiere Support at Microsoft.

Do you know what Premiere Support is?

A: I assume it would be people who supported developers,

1175

but I don't know that to be true.

Q: Did you know at the time that it was a telephone help
line that Microsoft set up so that ISVs, if they chose to
pay a fee to get access to this, could seek help from
developers at Microsoft in building their products?

A: That makes sense, yes.

Q: Did you understand at the time that if Novell had some
significant issue about APIs in Windows 95, that the logical
thing to do would be to contact the Windows 95 contact, Brad
Struss, and raise those issues?

MR. JOHNSON: Objection to what was logical, Your
Honor.

THE COURT: Overruled.

THE WITNESS: I think that would be a good thing
to do, yes.

BY MR. TULCHIN

Q: Do you have any information at all that anyone at
Microsoft ever from October 3rd, 1994, when Mr. Gates made
the decision to withdraw support for the namespace extension
APIs, until the time that Novell sold WordPerfect to Corel,
do you have any information at all that anyone at Novell
ever talked to Brad Struss about this question?

A: I do not personally have that knowledge, no.

Q: Would you agree with me, Mr. Frankenberg, that it
wasn't Microsoft's obligation in '94 or '95 to help Novell

1176

build a product, a software product that would be better
than Microsoft's applications, that it was not Microsoft's
obligation to help Novell do better than Microsoft could do?

MR. JOHNSON: Objection to the legal question.

THE COURT: Sustained.

BY MR. TULCHIN

Q: Would you agree with me, Mr. Frankenberg, that the
people at Premiere Support, as far as you understood it,
were there to answer questions about how an ISV could plug
into the APIs in Windows that Microsoft was supporting?

A: Yes.

Q: It wasn't their function at Premiere Support to help an
ISV figure out how to use an API that Microsoft was no
longer supporting.

Do you agree?

A: I am sure that is true. However, we had been using
those APIs and they were removed from our ability to use
them.

Q: Well, is there any information that you have that
indicates that any particular specific person at Microsoft
knew that you were using those APIs?

A: I am sure they did.

Q: Well, is there any document that you have ever seen,
ever, from Novell to Microsoft, which indicates in any way
that Novell had informed Microsoft that it was using those

1177

APIs or intended to use them in the future?

A: I have not seen documents. I have heard conversations,
but I have not seen documents.

Q: Are these conversations that you have heard in the
last, let's say, few months?

A: As well as conversations with, as I said -- as I
testified yesterday, with Mr. Calkins and Mr. Reitveld and
Mr. Waxman, that they had discussed this with Microsoft.
But I don't have any document, no.

Q: Mr. Frankenberg, let me show you Exhibit 155. I should
say Defendant's 155. When you have had a minute to take a
look at it, let me know.

A: Okay.

Q: Thank you, sir.

Now, this is a memorandum and at the top it says Novell
legal department memorandum from Ryan Richards. He was then
a lawyer at Novell, correct?

A: Yes, he was.

Q: And it is written to Mark Calkins, whose name we have
been talking about this morning.

Do you see that, sir?

A: I do, yes.

Q: It is written in January of 1995, and there are a
number of people who get copies of this, Mr. Mella,
Mr. Brereton, Mr. Moon, Mr. Bradford, Mr. Rietveld, you,

1178

David Owen and Todd Titensor.

Do you remember this memo? Do you remember receiving
it in 1995?

A: Yes, I do.

Q: And this is also on the subject of the Windows 95 logo
program, correct?

A: Correct.

Q: Now, the people who received copies of this are Mark
Calkins, to whom it was directed, and a number of people who
got c.c.s, those include the executives in the business
applications group that you referred to yesterday in an
answer you gave me at I think about 1:25. It was close to
the time that we were breaking.

Do you recall that?

A: Yes, I do.

Q: I think you said that you would have expected that had
there been a choice presented about how to respond to the
withdrawal of support for the namespace extension APIs,
whether to just use the Windows common file open dialogue or
to build this much more difficult road, if you will, to
develop a special Novell advanced file open dialogue, you
would have expected that the people involved in that
decision were Mr. Calkins, and I think you said Mr. Moon,
and Mr. Rietveld and maybe Mr. Mella, correct?

A: Yes, most likely Mr. Mella, having marketing

1179

implications.

Q: Right. And all four of those people received this
memorandum from Ryan Richards on January 12 of 1995, right?

A: Correct.

Q: Now, would it be fair to say, Mr. Frankenberg, that the
decision on how to respond to the namespace extension APIs
turned out to be a decision that had some real important
consequences for Novell?

A: Yes, it did.

Q: And is it also fair to say, Mr. Frankenberg, that as
far as you know no memorandum of this sort exists, that you
have never seen any memorandum of this sort which addresses
that decision about what choice to make?

A: I don't recall seeing one. That does not mean there
wasn't one, but I don't recall seeing one.

Q: I understand. That was just my question.

And you don't recall seeing one at the time in 1994 or
1995, right?

A: I do not.

Q: And you don't recall seeing any such memorandum in
preparation for your testimony here?

A: I do not.

Q: Now, if it is correct that no such memorandum was ever
written to Mr. Calkins or Mr. Moon or Mr. Rietveld or Mr.
Mella, or maybe to all four of them, if it is true that none

1180

was ever written, would that surprise you?

A: If it were true it would surprise me, yes.

Q: In any business organization faced with an important
decision, it would normally be the case that a memorandum
such as this would be written laying out the concerns and
the issues and the considerations facing that business in
making some strategetic or tactical choice, true?

A: That would normally happen but, as I have said, I don't
know of any such memorandum.

Q: Do you know of any evidence whatsoever that either Mr.
Calkins or Mr. Mella or Mr. Moon or Mr. Rietveld or any
combination of the four of them ever were asked to make a
decision about what choice to make in responding to
Microsoft's decision to withdraw support for the namespace
extension APIs?

A: Could you repeat your question, please. It was rather
long.

Q: It was long. I will try to make it quicker.

A: Thank you.

Q: A little shorter.

Mr. Frankenberg, do you know of any evidence whatsoever
that any of the four people we mentioned, Calkins, Mella,
Moon or Rietveld ever were presented with a decision about
how to respond to Mr. Gates' decision to withdraw support
for the namespace extension APIs?

1181

A: I know of no documents that do that.

Q: My question was a little broader. Other than
documents, is there any evidence that you know of that any
of these four people got involved in any such decision?

A: None, other than that I was told by either Todd
Rietveld or Jeff Waxman or Mark Calkins, as I testified
yesterday, that those extensions were removed from our use
and that that was the cause of delays. I assumed from that
that they knew about it and were responding to it, but I do
not have any other evidence other than that.

Q: And I think you said that you don't know when that
conversation took place, correct?

A: I said that it was probably the first part of 1995, but
I don't know an exact date, no.

Q: And you don't know who of those three you had the
conversation with? It could be any one of them?

A: Yes. Yes, I do not know which of the three --

Q: You're agreeing with me?

A: I do not know which of the three told me that, correct.

Q: Right. And looking at Exhibit 155 about the logo
program, you'll see that in the first paragraph Mr. Richards
writes I want to give you and those copied on this memo an
update of our discussions of the Microsoft Windows 95 logo
program.

I hope this is not repetitive, Mr. Frankenberg, but you

1182

don't know of any document or memorandum or e-mail which
reflects the same sort of effort to provide an update of
discussions that executives at Novell had had about the
namespace extension issue?

A: I think I have already answered that. No, I do not.

Q: Right. And then it goes on in the second sentence to
say Glen Mella, Todd Titensor, Greg Jones, David Owen and I
met this morning to try to reach a decision on a recommended
response to the logo program.

Now, do you recall, Mr. Frankenberg, that Microsoft at
least at one point was saying, and we looked at this in
Exhibit 22, that it was not willing to make an exception for
Novell to the requirement in the logo program that the ISVs
product degrade gracefully on Windows NT?

Do you recall that?

A: It must have been -- I didn't read all of that in
detail. Can you point out to me where that was, sir?

Q: I don't want to spend too much time, because if you
don't recall, that is fine.

A: Well, if it is in here -- I will take your word for it,
but I don't recall degrading gracefully.

Q: Well, there was a compatibility requirement with
Windows NT.

Do you recall that?

A: Yes. That is a bit different than degrading

1183

gracefully, but --

Q: Fair enough. We'll move on.

In the second paragraph of Exhibit 155, and this is a
two page memo, but we are still on the first page, the
author of this memorandum says two responses that we have
considered thus far are, one, to make a high profile
challenge to Microsoft's program requirements and, two, to
ignore the program and when asked state that we simply do
not intend to support it.

Do you see that, sir?

A: Yes, I do.

Q: Is it your recollection that you as the C.E.O. of
Novell ultimately made the decision to go with option two
when it comes to the logo program, that is, to ignore
Microsoft's logo program and simply decide not to
participate in it?

A: I may well have participated in that decision or made
it.

Q: Let me show you Exhibit 157.

I always forget to say Defendant's 157. Sorry.

THE COURT: We'll assume that is the case.

MR. TULCHIN: Thank you, Your Honor.

BY MR. TULCHIN

Q. Have you had a chance to take a glance at this, sir?

A: Yes. This confirms what I just said.

1184

Q: Right. This is an e-mail from Todd Titensor. He was
one of the people who got the memo, Exhibit 155, and it is
to a number of people. It has e-mail aliases. February
2nd, 1995. The subject is Win 95 logo requirements, issues
with NT.

Then in the very first paragraph -- I should say that
the e-mail is addressed to Ryan and Greg. Right below it,
and directing your attention to that paragraph, it says
below is the beginning of a cover message to the attached
document that we are planning to send to Brad Silverberg,
V.P. of operating systems at Microsoft regarding the NT
requirement for Windows 95.

Do you see that, sir?

A: Yes, I do.

Q: And ultimately Mr. Calkins sent the message that we
looked at earlier, Defendant's Exhibit 22, correct?

A: Yes.

Q: You'll see at the bottom of Exhibit 157, the document
we are looking at, that there is a draft of the first part
of what Mr. Calkins eventually sent to Mr. Silverberg at
Microsoft, right?

A: Yes. That is what it says.

Q: That was the message that was sent in March.

Going back to the top of the document, Mr. Silverberg
is identified as vice president of operating systems at

1185

Microsoft, right?

A: Yes.

Q: So Mr. Titensor certainly knew Mr. Silverberg's title,
and anyone reading this could have seen the same thing?

A: Yes.

Q: But as with Mr. Chase there is no document that was
ever sent to Mr. Silverberg as far as you know in which
Novell raised the subject of the namespace extension APIs?

A: There may have been such a document, but I don't know
of it.

Q: Then if you go to the third line of the first paragraph
there is a sentence that begins as you may be aware, and it
goes on to say Bob F has stated in a meeting with the QP
team, Mark, Glen, Bruce, that he does not accept the NT
requirement, and if it is not removed from the logo
requirements list we will simply not support the logo.

Do you see that?

A: Yes, I do.

Q: So to go back to my earlier question, is it fair to
say, looking at Exhibits 22 and 155 and 157, that you made
the decision that if Microsoft didn't grant Novell an
exception to the requirements of the logo program, that
Novell would simply not participate in it, correct?

A: That is correct.

Q: Thank you, sir.

1186

Now, I want to direct your attention, if I could, to
Defendant's Exhibit 637.

And before we look at this document, Mr. Frankenberg,
we spoke yesterday about the decision in October of 1995 to
announce that Novell intended to sell WordPerfect.

Do you remember that?

A: Yes, I do.

Q: And that announcement was made even before Novell had a
buyer, right?

A: That is correct.

Q: In fact, you testified that one of the reasons for the
announcement was to get the word out widely to attract as
many potential buyers as possible?

A: That is correct.

Q: But your announcement in October that Novell intended
to sell WordPerfect, had some adverse consequences in the
marketplace, correct?

A: Yes, it did.

Q: And one of your competitors, Lotus, the company that
was making Lotus Smart Suite, decided to exploit that
announcement that you had made.

Is that fair?

A: Yes, they did. It was a very competitive environment,
as this ad shows.

Q: Do you recognize Defendant's Exhibit 637 as a copy of

1187

an advertisement that Lotus placed in a number of
publications after your announcement in October where Lotus
was trying to exploit for its own advantages that
announcement?

A: Yes, I do.

MR. TULCHIN: We offer 637, Your Honor.

THE COURT: Okay. Any objection?

MR. JOHNSON: Yes, objection, Your Honor. I have
nobody from Lotus that I can cross-examine. This is
hearsay. I don't think --

THE COURT: It is not hearsay. It was what Lotus
did in reaction to the announcement.

Overruled.

(WHEREUPON, Defendant's Exhibit 637

was received into evidence.)

BY MR. TULCHIN

Q: Mr. Frankenberg, the advertisement that Lotus placed in
a number of papers, and this included The Wall Street
Journal, is that right, as you remember?

A: I don't remember which publications, but I do remember
the ad, though.

Q: You certainly remember seeing it at the time?

A: Yes, I do.

Q: Would you say it was sort of galling to you to see
this?

1188

A: To say the least, yes, but I thought it was a good shot
on their part.

Q: And what Lotus is doing -- the ad says in very large
type, now may be the time to give up on WordPerfect.
Obviously Novell thinks so. Then it goes on below to the
left, try Lotus Smart Suite featuring WordPro risk free for
90 days, only $199.

Do you see that?

A: Yes, I do.

Q: Is it correct, Mr. Frankenberg, that the announcement
that you made in October that Novell intended to sell
WordPerfect wound up hurting sales of WordPerfect and
PerfectOffice?

A: Yes, it would, and did.

Q: And because you made that announcement in October, and
because the announcement hurt sales, the price that you were
able to get from the buyer, Corel, was lower than it
otherwise would have been?

Is that fair?

A: I don't know that that is necessarily true.

Q: Well, certainly when Corel came in in 1996 and
expressed an interest in buying the WordPerfect business, it
asked for permission to look at the books and records of
Novell, correct?

A: Of course they did due diligence on the opportunity.

1189

Q: And in doing their due diligence they looked at the
sales figures for WordPerfect and PerfectOffice in November
and December of 1995 and into the first part of '96, true?

A: I would assume that they did that as well as earlier
sales.

Q: And if a buyer looks at sales figures and sees that the
sales are declining, that would normally lead to a lower bid
than you would otherwise get, true?

A: Perhaps, but if it is explainable, and it certainly was
explainable, since we made the announcement and people
didn't know what the future was going to be, that would have
an impact on sales. Once people knew what the future would
be, presumably those sales would recover somewhat. It may
have had an impact, it may not. I can't say for certain.

Q: Mr. Frankenberg, I want to take you back, if I could,
to the time when you first joined Novell, around April 1st
of 1994. I think you said on direct examination that when
you joined Novell you were enthusiastic about Novell's
pending purchase of WordPerfect Corporation.

Do you recall that?

A: Yes, I do.

Q: Now, am I correct, in fact, Mr. Frankenberg, that the
truth is you did not agree entirely with the strategy that
Mr. Noorda had had, your predecessor at Novell, of buying
WordPerfect Corporation?

1190

A: I think I also said that I had some significant
concerns about taking Microsoft on at the head in the
markets that they dominated. Sometimes we use the D word.

THE COURT: The distinction is understandable.

BY MR. TULCHIN

Q: Mr. Frankenberg, is it correct that at around the time
you were coming to Novell, that you did not think that
Mr. Noorda's business plan would work?

A: I thought that it was very difficult to take on an
entrenched competitor in every market that they were in, and
especially one approximately five times your size, that is
correct.

Q: My question, and I appreciate your answer and maybe
we're actually pretty close, but my question is around the
time that you were coming to Novell, was it your view that
Mr. Noorda's business strategy would not work?

A: It wasn't my view that it would not work, it was my
view that I had significant concerns about it, and that it
might well need to be modified and it was very risky. I did
have concerns, yes.

Q: Mr. Frankenberg, I'm going to hand you a transcript of
a deposition. This was a deposition taken in the Caldera
case.

Do you remember that, sir?

A: Yes, I do.

1191

Q: I may have given you the wrong volume. I understand
there were two. I'm sorry.

A: Worse than that, I remember doing both of them.

Q: Maybe I gave you the right volume. I'm sorry that you
were subjected to two.

This is in 1998. Do you recall that?

A: Yes, I do.

Q: I mean, we are now 17 years later, this is only four
years after the events, correct?

A: Correct.

Q: And could I ask you, sir, to turn to page 159. I hope
you have the right volume.

THE COURT: Volume two?

MR. TULCHIN: Yes, sir.

MR. JOHNSON: I am sorry. I don't have the right
volume.

MR. TULCHIN: I'm sorry, Jeff.

THE COURT: You can have mine if you want.

The only good decision I made yesterday was not
taking you up on that deposition.

BY MR. TULCHIN

Q: You and I hadn't met yet, Mr. Frankenberg, so these are
not my questions. But if you look at page 159, line 6 --
are you with me, sir?

A: I am, yes.

1192

Q: You were asked this: At the time before coming to
Novell, in these conversations and in your consideration,
did you think that Mr. Noorda's business plan for Novell
would work? Your answer was no, just a flat no.

Do you recall that?

A: Yes.

Q: And that was your answer to the question in 1998?

A: Yes.

Q: And then the questioner goes and says why? Your answer
was I should say strategy for Novell. You said business
plan and I was thinking strategy. So is strategy okay? And
the questioner says strategy works. And then you go on to
say, okay. No, because Novell was significantly smaller
than Microsoft in revenue, and even though a very successful
company -- its success was largely based on networking and
on integrating operating systems with networking and making
the two work very well together. And going toe to toe with
somebody three times your size on every front is generally
not a good strategy.

That was your answer at the time?

A: Well, so it was three times not five times, but I did
remember my answer.

Q: Yes. We won't quibble with the comparison in size.

A: Eventually it did get more than five times.

Q: I don't doubt that, sir.

1193

But my question is this, Mr. Frankenberg. Your
testimony in 1998, which was four years after the event, was
that you didn't agree with Mr. Noorda's strategy of buying
WordPerfect Corporation, right?

A: That is not accurate. What this says is that -- the
question was did I agree with the business plan, and then
later modified to strategy because --

Q: Right.

A: -- that is what I had in mind was Strategy for Novell.
So it wasn't just WordPerfect, it was asking about the
entire company, not just buying WordPerfect. So my answer
there was that it is not a good idea to take on somebody a
lot bigger than you are and everything that they are doing
toe to toe. In selected areas you can do that, but it is
harder to do that and succeed if you're fighting on all of
those fronts. That was my answer then and now.

Q: I follow you, sir.

Am I correct that one of the reasons that you gave that
answer in '98 about your disagreement with the strategy, was
that you didn't think it was a good idea to take on
Microsoft in the suite market, correct?

MR. JOHNSON: Objection, asked and answered.

THE COURT: Overruled.

THE WITNESS: What I was concerned about was
taking on Microsoft and all of the businesses that they were

1194

in. I said earlier -- I testified earlier that I was
enthused about the suite opportunity, that I was enthused
about network applications and that we had a good
opportunity. I believe it was 74 percent of the people that
hadn't made the decision yet, and that the network could
play a big role in the success of that. So I had concerns,
and I stated them in 1998 and I stated them in 2009, and I
stated yesterday that I had those concerns.

BY MR. TULCHIN

Q: Could I ask you, sir, to look at page 171. This is the
same transcript, your deposition in the Caldera case in
1998. Starting at line 11 --

A: What page, again, sir?

Q: 171.

A: This is very hard to read. There it is. Okay.

Q: Are you with me, sir?

A: Yes.

Q: You were asked the time period when you came on board,
you indicated previously that you did not think that
Mr. Noorda's strategy may have been the right strategy.

Your answer there was yes, correct?

A: Yes.

Q: And then the next question is was it known to the board
that you had that view at the time that you came on?
Answer, I think some of the board members knew that. I

1195

can't say that everyone did. I made it clear in the
interviewing process that while I was enthused, for example,
about the acquisition of WordPerfect, largely because of the
product that became known as GroupWise and, I'm sorry, I
can't remember the name it had before that, that I had some
concerns about going after Microsoft toe to toe in every
arena, especially in the operating system and suite areas
that they dominated, personal productivity suite areas that
they dominated.

Do you see that, sir?

A: Yes, I do.

Q: That was a correct answer at the time in '98?

A: Yes.

Q: So is it correct then to say that, Mr. Frankenberg, one
of your concerns just at the time that you were joining
Novell, around the first of April of 1994, is that it might
not be a great idea to take on Microsoft in the suite area?

A: Amongst other areas, yes.

Q: And in the suite area I think you told me yesterday
that Microsoft had this huge head start. They were years
and years ahead of WordPerfect?

A: Actually I think you told me that.

Q: Well, you agreed with me?

A: Okay.

Q: Isn't that right?

1196

A: Yes.

Q: Okay. And you also told me yesterday that in the suite
area Microsoft had the strongest one two punch, the
strongest one two combination of Word and Excel, correct?

A: What I said, actually, was that WordPerfect was a
better word processor than Word, and that Lotus One Two
Three was a better spreadsheet than Excel, but that they
were both strong products.

Q: But nobody had a one two punch, a combination of the
word processor and a spreadsheet that was as strong as
Microsoft's Word and Excel put together?

A: True. I guess two Bs versus an A and a C and a C and
an A is kind of what you're talking about.

Q: All right. But you agree?

A: All right.

Q: Thank you, sir.

Now, I want to show you just briefly Exhibit 377.

Mr. Frankenberg, you recognize this document as a
contract that Novell entered into in 1996 with a company
called Caldera, correct?

A: Yes, I do recognize it.

Q: And if you turn to the very last page, page 21, at the
bottom the contract was signed for Novell by Mr. Bentley,
correct?

A: Yes, it was.

1197

Q: This was around the time that you were leaving Novell;
is that right?

A: It was approximately a month or maybe a little more
than a month before I left.

Q: Right. And Mr. Bentley was authorized by the board of
directors and by you to sign this contract for Novell,
correct?

A: That is correct.

Q: Could you look just briefly at the bottom of page 4 of
Defendant's Exhibit 377.

MR. JOHNSON: Your Honor, may we approach, please.

THE COURT: Sure.

(WHEREUPON, a bench conference was begun.)

MR. JOHNSON: Your Honor, turn the mike away.

THE COURT: Thank you.

MR. TULCHIN: I just want to preserve this for the
Tenth Circuit, Your Honor. This is the sale of claim issue,
and --

THE COURT: Okay. Let's preserve it here at the
bench.

MR. TULCHIN: Not in front of the jury.

THE COURT: You can preserve it here.

MR. TULCHIN: This is not in evidence.

MR. JOHNSON: Thank you, Your Honor.

MR. TULCHIN: Thank you.

1198

(WHEREUPON, the bench conference was concluded.)

THE COURT: For that legal issue it was right to
approach the bench.

Thank you, Mr. Johnson.

MR. TULCHIN: Thank you.

BY MR. TULCHIN

Q: Mr. Frankenberg, you can put that document aside.

A: Are you okay? Did you hurt yourself?

MR. TULCHIN: No. I am afraid I may have hurt one
the computers by pulling out the plug, but I hope the APIs
survived.

THE WITNESS: We'll find some way to access them.

THE COURT: It might take a year.

THE WITNESS: That is right. You asked me
questions last night in my sleep. You are everywhere.
Actually I should say the same question over and over.

BY MR. TULCHIN

Q: Well, when I play bridge I see cards falling in my
sleep.

A: I understand that, yes.

Q: I sympathize.

Mr. Frankenberg, a different subject. Novell had its
own operating system, correct, the NetWare product which was
an operating system for servers, right?

A: It was a network operating system, yes.

1199

Q: Thank you, sir.

NetWare, the NetWare operating system had APIs,
application program interfaces, correct?

A: Yes, it did.

Q: In any given version of NetWare there were many, many
APIs?

A: That is correct.

Q: At the time that you were C.E.O., the head of Novell,
did you consider those APIs to be Novell's intellectual
property?

A: Yes.

Q: And, in fact, Novell claimed a copyright on the APIs,
correct?

A: That is correct.

Q: And that was the subject of a certain amount of
contention in the industry, whether Novell was entitled to
protect APIs through a copyright?

A: The tension was largely with Microsoft, but, yes.

Q: All right. But it was your position throughout the
time that you were C.E.O. that the application programming
interfaces in your operating system, NetWare, were Novell's
intellectual property, correct?

A: That is correct.

Q: And you never wavered from that position?

A: No.

1200

Q: Am I correct, Mr. Frankenberg, that when Novell
received a beta version of a Microsoft operating system, at
least during the time that you were at Novell, it was
understood by people at Novell that a beta version is
nothing more than a prerelease version of the product?

A: Yes.

Q: And it was also --

A: It is actually a fairly advanced prerelease of the
product, because it had already gone through what was
normally called the alpha stage or the pre-alpha stage and
had been tested and used in a number of ways qualifying it
to be labeled beta.

Q: Novell sent out beta versions of NetWare to various
other software companies from time to time, correct?

A: Yes, we did.

Q: And when Novell sent out beta versions of its operating
system, Novell made sure that the people who were intending
to use the beta understood that the beta could change, that
the product could change, right?

A: Yes.

Q: And you understood when Microsoft sent a beta version
of Windows 95 to Novell, that that prerelease version could
change.

Am I right?

A: Yes, it could change.

1201

Q: You also understood that there was no obligation on
anyone's part, either Novell when it sent out a beta, or
Microsoft when it sent out a beta, to make a product that
conformed exactly to what the beta contained?

MR. JOHNSON: Objection, calls for a legal
conclusion.

THE COURT: I think so too. I will sustain it.

BY MR. TULCHIN

Q: Mr. Frankenberg, let me show you a copy of
defendant's --

THE COURT: Just so you all understand, clearly it
is not an industry practice, the answer to that question,
but the antitrust issues that you all need to --

Q: Do you recognize this as a contract that Novell
provided to developers that were receiving copies of
Novell's beta versions of NetWare?

A: I see that it is a license agreement. I guess that is
a contract. I don't know. I'm not a lawyer.

Q: All right. Let's call it a license agreement. You'll
see at the bottom of the first page to the left it says

1202

copyright 1994 and 1959 Novell, Inc.

Do you see that?

A: Yes, I do.

Q: So will you agree with me that this was an agreement
that Novell used in those years, '94 and '95?

A: It appears to be the case, yes.

Q: Will you look on the first page under the title
disclaimer. There is a paragraph there.

Are you with me?

A: I am with you, yes. I am reading it.

Q: Sure. Take your time.

A: Okay.

Q: About five lines down in that paragraph it says Novell
does not warrant that the software or associated
documentation will satisfy your requirements, or that the
software and documentation are without defect or error, or
that the operation of the software will be uninterrupted.

Do you see that, sir?

A: Yes, I do.

Q: And that is because a beta version is nothing more than
a prerelease version, true?

A: I'm a little bit confused. This is for a software
developers kit that would have been released as opposed to a
beta version of a product. This is not a beta license, it
is a --

1203

Q: Could I ask you --

A: It is an agreement for a released product.

Q: Could I ask you to look at the second page of this
agreement, Exhibit 618. In the first column on the left
under the heading license there is a long paragraph.

Maybe we can bring that up.

A: Okay.

Q: I know this is sort of dense language, but about --

A: Yes, it is.

Q: About three --

A: Obviously designed for people younger than me.

Q: Younger or more versed to these sorts of agreements,
one of the other.

A: Okay.

Q: Maybe both.

About three quarters of the way down there is a
sentence that begins beta products.

Do you see that?

A: Yes.

Q: Beta products are prerelease quality and have not been
fully tested and may contain errors and omissions.

Do you see that, sir?

A: Yes, I do.

Q: That was something that Novell in this agreement was
telling people who received the software developer kit,

1204

correct?

A: Yes.

Q: Would you agree with me that that was something that
was widely understood in the software industry?

A: Yes, it was.

Q: And then the next two sentences say Novell does not
guarantee that beta products will become generally available
to the public or that associated products will be released.
The entire risk arising out of your use of beta product
remains with you.

Do you see that?

A: Yes, I do.

Q: And, again, that was something that when you were
C.E.O. Novell put in its agreement, Exhibit 618, covering
the software developer's kit, correct?

A: Correct.

Q: Would you agree with me that that was something as well
that was commonly understood in the industry at the time?

A: I think so, yes.

THE COURT: I do this at the risk of you all
telling me that I say something wrong, and I know this must
be confusing for you all, but here the allegation is that it
is not a -- the withdrawal of the APIs, the basic extensions
is not a question of industry practice, and that it is
understood that that is what happened, that that is the way

1205

the industry worked, it is not a violation of a licensing
agreement or anything of that nature.

What is alleged here, and the reason all along,
and I am just telling you all so that you are not confused,
here the allegation made by Novell is that the withdrawal of
the namespace extensions, even though it was understood in
the industry that that could occur, constituted a violation
of the antitrust laws. I hope that clarifies it a little
bit. This is not a case about licensing agreements or
anything else, but it is about whether or not Novell's claim
that the violation of the namespace extensions are an
antitrust violation constituting anticompetitive conduct.
So that is where we are. Okay.

I hope I got that right.

MR. JOHNSON: You did, Your Honor. Actually --

THE COURT: Do you want to approach?

MR. JOHNSON: Maybe at a break --

THE COURT: I don't want to misstate anything, but
I don't want you all to be confused about this, and I might
have misstated it, and so I will talk with you at a break.

BY MR. TULCHIN

Q: Mr. Frankenberg, I'm handing you Defendant's Exhibit
19. Take a look at it, but I think I can say to you this is
a license agreement. It is entitled nondisclosure agreement
between Microsoft and Novell.

1206

A: Yes.

MR. JOHNSON: Again, Your Honor, I think at this
point I do need to approach.

THE COURT: Approach the bench.

(WHEREUPON, a bench conference was begun.)

MR. JOHNSON: Of course, Your Honor, remember that
we had this discussion sometime ago about these documents
and their significance or lack thereof. We actually
formulated from what you had said at the hearing a proposed
instruction that we would ask that the Court give about this
document --

MR. TULCHIN: I have not seen this, Your Honor.

MR. JOHNSON: -- which is exactly what you said at
the hearing.

MR. TULCHIN: I don't think any such instruction
should be given now. If it is appropriate at the end in the
Court's instructions to the jury, then --

THE COURT: I think I can give it now. I will
give it.

MR. JOHNSON: Thank, you Your Honor.

(WHEREUPON, the bench conference was concluded.)

THE COURT: I am going to let the document in. We
obviously had previously discussions about this outside your
presence and I am going to let the document in. I just want
to let you know that if you find that Microsoft committed

1207

antitrust violations in this case, that the contract which I
am letting in does not excuse Microsoft's conduct or protect
it from damages for antitrust violations. That is sort of
saying what I have said before.

MR. JOHNSON: Thank you, Your Honor.

THE COURT: But now we are -- it is actually the
license agreement between Microsoft and Novell.

MR. TULCHIN: Yes, sir.

BY MR. TULCHIN

Q: Mr. Frankenberg, looking at the first page, about one
third of the way down, you'll see that it is about the
product named Chicago, correct?

A: Yes.

Q: And this is the beta licensing agreement between
Microsoft and Novell for Chicago, what became Windows 95.
Is that fair?

A: Yes.

Q: Now, would you look, sir, still on the first page of
Defendant's Exhibit 19, and there is a paragraph numbered
two, capital letters prerelease code. You'll see there that
it says this product consists of prerelease code,
documentation and specifications, and it is not at the level
of performance and compatibility of the final generally
available product offered. The product may not operate
correctly and may be substantially modified prior to first

1208

commercial shipping. Company assumes the entire risk with
respect to the use of the product.

Now, that is sort of consistent with what Novell put in
its license agreement that we looked at a moment ago,
correct?

A: It is consistent with it, yes.

Q: They are certainly pretty much similar, right?

A: Yes.

Q: And it was your understanding at the time in 1994, when
you were C.E.O. of Novell, that when Novell got a beta
version from Microsoft of what eventually became Windows 95,
that the beta version might change, correct?

A: Yes.

Q: Do you recall, Mr. Frankenberg, around the middle of
1995 --

A: Mr. Tulchin, could we go back to this document for a
minute?

Q: Yes, of course.

A: This actually is between Novell, the systems part of
Novell and not Novell WordPerfect.

Q: You're correct, and I have the one with WordPerfect if
you want to see it.

A: I was only pointing that out so that we were clear.

Q: I'm sorry. Defendant's Exhibit 18 is -- we're looking
for it -- it is the document that is the same contract but

1209

between Microsoft and WordPerfect.

Let me just give you a chance to take a look at that.

THE COURT: To pick it up, Mr. Frankenberg, what I
said before obviously applies to this document as well.

BY MR. TULCHIN

Q: You're welcome to look at the last page, Mr.
Frankenberg, and you'll see that Exhibit 18 is the same
contract, but this one with WordPerfect instead of Novell,
right?

A: It is actually -- yes, it is WordPerfect just prior --
about a month prior to the completion of the acquisition.

Q: Right. And the contract would continue on with
WordPerfect?

MR. JOHNSON: Objection to the legal conclusion.

THE COURT: It probably is a legal conclusion, but
I think it probably will help the jury to know.

Overruled.

THE WITNESS: Yes. You were a little quick for
me.

BY MR. TULCHIN

Q: This Exhibit 18, I think you have now said is a
contract between Microsoft and WordPerfect Corporation just
before WordPerfect was acquired by Novell, correct?

A: Roughly a month before it was completed, yes.

Q: Right. And the same contract would continue in

1210

existence after --

THE COURT: Generally that is a legal conclusion,
but I think subject to proof of the contract that is true.

BY MR. TULCHIN

Q: Is that your understanding?

A: I would assume so, yes.

Q: Now, we won't spend a lot of time on this, but it is
exactly the same contract with the same provisions, is it
not? The product name is Chicago at the top, et cetera, and
the paragraph number two, prerelease code --

A: Just a second.

Q: Take a look at it, but this is the one with WordPerfect
and --

THE COURT: He has already looked at that.

THE WITNESS: I looked at it and I agree it is the
same.

BY MR. TULCHIN

Q: It is the same. All right. I was just responding to
your point that there was a second contract.

A: Thank you.

Q: Thank you.

Do you recall, Mr. Frankenberg, and now directing your
attention to the middle of '95, do you recall in the middle
of 1995 telling Mr. Bradford, the top lawyer at Novell, the
general counsel, that one of the reasons that PerfectOffice

1211

for Windows 95 was going to be delayed was because of five
bugs in Windows?

A: No, I did not tell him that.

Q: Do you recall expressing that view to Mr. Gates at
Microsoft, that there were bugs in Windows that caused
PerfectOffice to be late?

A: Yes.

Q: And --

A: Those are two different things, though.

Q: I understand. I understand. I am just asking a second
question. But --

MR. JOHNSON: Can we allow the witness to explain,
Your Honor?

THE COURT: He can, but not right now.

Go ahead.

BY MR. TULCHIN

Q: Mr. Frankenberg, around the middle of 1995, let's say
around July, August, did you tell Mr. Gates that one of the
problems you were having in getting PerfectOffice for
Windows 95 out to the market was because of bugs in Windows?

A: I recall telling Mr. Gates that we were having troubles
running our current version of PerfectOffice, PerfectOffice
3.0, the one that had been released the previous December on
Windows 95, and the issue was bugs in Windows 95.

It says David Miller at the top, and we saw
Mr. Miller's name on an exhibit earlier today, and I think
it was 22.

Do you remember that?

A: I don't remember whether it was 22 or not, but I do
remember seeing his name.

Q: He was director of strategic relations, I think, or
something like that.

A: He very often interfaced with Microsoft, yes.

Q: Right. And Exhibit 6 at the top says Dave thinks the
August 21 letter went out from DRB.

That would be Mr. Bradford, correct?

1213

A: Correct.

Q: The general counsel. DRB and others believe that this
bug deal is a big deal but the apps people do not.

Do you see that?

A: Yes.

Q: The apps people would refer to people like Mr. Calkins
and Mr. Moon and Mr. Rietveld and Mr. Mella?

A: It would have been people in that area. I don't know
specifically who Dave Miller was referring to.

Q: All right.

A: But, yes, in that team.

Q: The next sentence says Dave thinks it is mostly our
fault. When we found the bugs we didn't press Microsoft to
fix them.

Do you see that?

A: Yes.

Q: And then it goes on to say when Dave was in Mac
development and they found a bug in the Mac OX they called
Apple daily until they were fixed. Our apps people don't do
that enough. Dave said that Bruce Brereton didn't think the
letter should have been sent at all. He felt that the bugs
were ordinary bugs not malicious. He and Dave -- it says
though, and it maybe should be thought -- our guys should
just call the Q and A people at Microsoft and get them
fixed, not write the letter.

1214

Now, this is an example, is it not, Mr. Frankenberg, of
a case where some people at Novell were blaming Microsoft
for certain bugs, right?

A: Yes.

Q: And by your recollection they were bugs that effected
the old versions of WordPerfect and PerfectOffice?

A: The old versions of WordPerfect and PerfectOffice
running on what became Windows 95, yes.

Q: All right. And this memorandum, Defendant's Exhibit 6,
indicates that the apps people don't think that it was
Microsoft's fault at all, and Dave, it looks like referring
to Dave Miller, thinks it is mostly Novell's fault, correct?

A: Well, I don't know why Dave Miller would refer to
himself with his name, so I don't think it refers to Dave
Miller.

THE COURT: I think it is very confusing. I don't
think he wrote the memo.

BY MR. TULCHIN

Q: Mr. Frankenberg, if you look towards the bottom left of
the document there are the initials RR written in hand.

A: Yes.

Q: Do you see that?

A: I do.

Q: Do you recognize those initials as Ryan Richards?

A: It may be, but I am not sure. I don't recall what his

1215

handwriting looked like.

Q: Thank you, sir.

In any event, am I right that this is an example of
some people at Novell blaming Microsoft for a problem with
Windows when, according to this memo, the apps people don't
think it was Microsoft's fault and Dave thinks it is mostly
Novell's fault?

MR. JOHNSON: Objection, asked and answered.

THE COURT: Overruled.

Go ahead.

THE WITNESS: Could we try that one more time, Mr.
Tulchin?

MR. TULCHIN: Sure.

THE COURT: And you have the same objection.

MR. JOHNSON: Thank you, Your Honor.

BY MR. TULCHIN

Q: I am just asking, Mr. Frankenberg, if this is an
example of a case where some people at Novell blamed
Microsoft for a problem, and other people at Novell didn't
think it was Microsoft's fault at all, they thought it was
Novell's fault?

A: Well, I think what this actually says is that there
were bugs, and they should have been more diligent in asking
Microsoft to fix them. I don't think it says that there
were not bugs.

1216

Q: Right. But certainly it says what it says, Dave thinks
it is mostly our fault?

A: Yes, for not being aggressive enough in asking them to
fix them. I agree.

Q: And it goes on to say that he felt -- it looks like it
was either Dave or Bruce Brereton -- he felt that the bugs
were ordinary bugs not malicious, right?

A: Yes.

Q: So there was nothing malicious, according to this, in
what Microsoft was doing.

Do you agree?

A: As far as the bugs are concerned, yes.

Q: All right.

A: Not in other areas.

Q: Am I right, Mr. Frankenberg, that software engineers at
Novell worked with people in the systems group, the
operating systems group at Microsoft on a regular basis?

A: Yes, they did.

Q: And as far as you know, and you may have said this
yesterday, and if I am repeating something forgive me, but
as far as you know the people in the systems group at
Microsoft endeavored to be helpful to Novell, correct?

A: Generally, yes, that is true.

Q: All right. Now, am I also right, Mr. Frankenberg, that
in 1995, even if it had been true that the shared code group

1217

was ready to go, that they had written an advanced file open
dialogue that was ready, the QuatroPro people were not ready
with their product that would have gone into PerfectOffice?

A: I don't know that personally, no. It may well have
been, but I don't know that personally.

Q: Mr. Frankenberg, I'm handing you Exhibit 221. This was
written on March 1st, 1995. It is from Bruce Brereton,
whose name we have seen before, and it is addressed to BU
staff and BU managers.

Who would that include?

A: BU would be short for business units, so that would
have been the applications, business applications, business
unit.

Q: That would include people like Mr. Calkins, correct?

A: Yes.

Q: And maybe Rietveld and Moon as well?

A: Perhaps, yes. Although technically they would have
been group staff as opposed to business unit staff, but it
may well have included them.

Q: But certainly Mr. Calkins would have gotten this?

A: Yes.

Q: At the top under the word confidential the first
paragraph says in an effort to make sure that we are all in
sync, et cetera, I'm sending this to group leaders. As you
know our current plan of record is that we would ship or Win

1218

95 products as follows. WP -- and that means WordPerfect,
right?

A: Yes.

Q: -- September 15th and Storm November 30th.

Do you see that?

A: Yes.

Q: Now, this is March 1st of 1995. Storm referred to the
suite; isn't that right? That was the code name for the
suite?

A: That was the code name for the suite, yes. The one
that was designed for and ran on Windows 95.

Q: Right. So even on March 1st, 1995, according to the
first paragraph of Exhibit 221, the plan -- the plan of
record, and let me just stop there. That plan of record,
was that something that you would have approved?

A: I probably would have been aware of it. The approval
would have been done by the business unit.

Q: Mr. Calkins?

A: Mr. Calkins, perhaps Mr. Rietveld --

Q: Right.

A: -- and the others we have talked about, Dave Moon and
so on.

Q: I didn't mean to interrupt.

The plan of record on March 1st this says was to ship
Storm, that is the PerfectOffice suite, on November 30th,

1219

correct?

A: Yes.

THE COURT: I am not sure. I am sorry. I am
confused. I am sorry. Read the next -- maybe we're going
to get there.

MR. TULCHIN: We are, Your Honor.

THE COURT: Okay. Go ahead.

MR. TULCHIN: We are.

BY MR. TULCHIN

Q: The very next paragraph in Mr. Brereton's memorandum or
e-mail says after further discussion and an analysis of
several options, we feel it would be much better to have
WordPerfect, which then implies PerfectFit, WPDraw and many
other components on the same schedule as Storm.

Just above with Storm they talked about November 30th,
right?

A: Yes.

Q: And then it says, also, the QuatroPro team have
examined their product deliver time frame and feel December
30th is a more realistic date. Therefore, after reviewing
this with Mark, Glen and others, we have moved the Storm RTM
date -- and RTM means release to market, right?

A: Release to manufacturer.

Q: Thank you. Release to manufacturing, back by one month
to December 30th, and have put WP on the same timeline as

1220

Storm.

So Exhibit 221 tells us, does it not, Mr. Frankenberg,
that on March 1st of '95 the plan became to get
PerfectOffice out, released to manufacturing, not even to
the market, just to manufacturing, at the very end of the
year, December 30th, correct?

A: Yes.

Q: There is nothing in here about the namespace extension
APIs causing any delay, is there?

A: Well, I have not read the whole document.

Q: Well, feel free. So far in the stuff we have looked at
there is nothing in there?

A: So far, yes.

Q: What it says is the QuatroPro team does not think they
can get it done by November 30th. They feel that December
30th is more realistic and, therefore, the Storm date has
been pushed back to December 30th, the very end of the year,
correct?

A: What we don't know from what we have read so far is
whether the QuatroPro team was delayed by the shared code
team not having completed their task. So it is hard for me
to say that they couldn't do what they needed to do until
shared code was in shape to work with. It is a little bit
hard for me to agree with your conclusion --

Q: Well, I'm happy to --

1221

A: -- without knowing the answer to that question.

Q: Well, I'm happy to have you look at the whole thing.

THE COURT: He does not know.

MR. TULCHIN: I understand, Your Honor.

THE COURT: Again, there is no magic to me asking
the question. Well, is there a delay between, ordinarily
between release to manufacturing and manufacturing to get it
out to market?

THE WITNESS: In Novell's case it was a matter of
usually 24 hours or --

THE COURT: So --

THE WITNESS: It was essentially the same. That
is why we used the term release to manufacturer.

THE COURT: That is fine.

MR. TULCHIN: Thank you, sir.

THE WITNESS: Although, your honor, you're right,
it could be significantly different.

THE COURT: But in this case it is really not?

THE WITNESS: Yes.

BY MR. TULCHIN

Q: Mr. Frankenberg, the second page shows that copies of
this memo went to Mr. Calkins and Mr. Mella and to Dave, and
do you know who Dave would have been?

A: Dave probably would have been Dave Moon.

Q: Dave Moon. To Todd Titensor, correct?

1222

A: That looks right, yes.

Q: And to others?

A: Yes.

Q: Going back to the first page we looked at the paragraph
saying that we have moved the RTM date back by one month,
and then right under that there is a paragraph that starts
some additional comments. One, we still have several
assignments that are not yet covered. We are short by about
ten people so we are looking at doing some relocations of
our staff. A few assignments will be temporary and some
will be permanent. I'll be working with the various
development directors to come up with the best proposals,
and will be surveying our teams to see if there is any
interest in the specific open positions.

Also, we are committed to help out the QP team,
Quatropro, in any way we can. Most likely PerfectFit and
Win 95 kinds of things. So please be aware that some of you
will be asked to travel to Scotts Valley for short trips and
may work on QP for some amount of time while here in Orem.
For what it is worth, their location is beautiful.

Now, this tells you, Mr. Frankenberg, does it not --

A: It was beautiful.

Q: I know it is. This tells you, does it not, that there
were problems getting the job done with QuatroPro in Scotts
Valley, correct?

1223

MR. JOHNSON: Your Honor, we went through this.
Mr. Gibb covered all this, and this is not the man to be
talking about these subjects.

MR. TULCHIN: I am surprised to hear counsel say
that.

THE COURT: Well, okay.

I raised the issue and, Mr. Tulchin, you can
continue. I am sure you took into account what I said, but
I am sure you will streamline your examination.

MR. TULCHIN: I will, Your Honor.

BY MR. TULCHIN

Q: The point here is that the author here, Mr. Brereton,
says we are short by about ten people, and some people are
going to have to relocate to Scotts Valley at least
temporarily, correct?

A: That is what this document says, yes.

Q: And Scotts Valley --

A: I have never met a development team that didn't feel it
was short by some number of people.

Q: Right. Building software is complex and complicated
and time consuming and you can always use more help.

A: Yes.

THE COURT: Usually.

MR. TULCHIN: Okay.

BY MR. TULCHIN

1224

Q: Mr. Frankenberg, were you aware around March of 1995
that the QuatroPro team in Scotts Valley wanted to push back
the date for the release of PerfectOffice?

A: No, I was not aware.

Q: I don't know if you have had a chance to look at any of
the rest of Exhibit 221, but is there anything in here that
you have been able to spot that has anything to do with some
delay that Mr. Harrall or Mr. Richardson were having in
trying to build the advanced file open dialogue?

A: I don't see anything in here along that line.

Can we go back to my answer to the previous question --

THE COURT: I don't think that is -- we understood
what you said. I think we ought to just move on.

THE WITNESS: Well, I wouldn't have --

THE COURT: Your concern is that somehow what they
were doing was delaying QuatroPro.

THE WITNESS: Yes.

THE COURT: We all understand that. There has
been other evidence of that.

BY MR. TULCHIN

Q: Mr. Frankenberg, would you say that Windows 95 was a
significant step forward?

A: Yes, it was.

Q: And would you say as well that Novell was very excited
about Microsoft's impending release of Windows 95?

1225

A: We were very excited and very interested, yes.

Q: And there were many features in Windows 59 that Novell
was eager to take advantage of?

A: Yes.

Q: What Novell wanted to do with PerfectOffice was to
build the PerfectOffice suite in a way that would take
advantage of all of those features and do even more,
correct?

A: I don't know that it could advantage of all of the
features of Windows 95, but it would certainly have taken
advantage of the capabilities in Windows 95 that would give
it an advantage in the marketplace, if that is your
question.

Q: Was it true that Novell wanted to do even more by
building the advanced file open dialogue?

A: I believe the advance file open dialogue was written in
response to the APIs being withdrawn, so I don't know that
it would have been as you stated.

Q: Was it your view at the time, in 1994 and 1995, that if
PerfectOffice, the new version of PerfectOffice for Windows
95 had been released by Novell, that that would have made
Windows 95 even more desirable in the marketplace than it
otherwise would have been?

A: Definitely. It would have made Windows 95 more
desirable in the marketplace.

1226

Q: It was your view at the time that if PerfectOffice for
Windows 95 had been released by Novell, that would have been
a benefit to Microsoft for exactly the reason that you just
said, it would have made Windows 95 even more desirable for
consumers?

A: That is true.

Q: If --

A: Especially for those who used WordPerfect products.
They would be able to use Windows 95, and they wouldn't
otherwise have been able to do that if they wanted to
continue using WordPerfect.

Q: If anything, that would increase the sales of Windows
95, correct?

A: Yes.

Q: Having a good PerfectOffice product out there would
make Windows 95 even more popular than it turned out to be,
true?

A: True.

Q: If PerfectOffice had been released in 1995 by Novell
and had been successful, and had gained a reasonably good
share of the market how, if at all, would that have effected
sales of Windows?

A: Presumedly it would have increased sales of Windows 95.

Q: And would have made Windows 95's market share even
higher than what it turned out to be, correct?

1227

A: Yes.

MR. TULCHIN: Nothing else, Your Honor.

THE COURT: Mr. Johnson.

MR. JOHNSON: Thank you, Your Honor.

Give me a moment, please.

THE COURT: Of course. We will go about 15
minutes, and depending on where you are we'll break.

MR. JOHNSON: Sure. Unfortunately, I have more
than 15 minutes.

THE COURT: I just wanted you to know our
schedule. We will break at 15.

REDIRECT EXAMINATION

BY MR. JOHNSON

Q: Mr. Frankenberg --

A: Yes, sir.

Q: -- good to be talking to you again.

A: It is for me, too.

Q: Unfortunately we have a lot of ground to cover, because
that was a rather lengthy cross-examination, so we're going
to have to go back and talk about some of the things that
were discussed yesterday, and then we will eventually get to
the things that were talked about today.

Right now I would like to --

MR. TULCHIN: Your Honor, I object to these
gratuitous comments. I think we should just proceed.

1228

THE COURT: Well, that will add to the next
cross-examination.

MR. TULCHIN: Appreciate that, Your Honor.

BY MR. JOHNSON

Q: There were questions from Mr. Tulchin yesterday about
the fact that you never told Mr. Gates personally that
WordPerfect was using the namespace extensions.

Let me show you what has been marked Plaintiff's
Exhibit 220.

MR. JOHNSON: Your Honor, would you like one or is
the screen okay?

Thank you.

BY MR. JOHNSON

Q: This is an e-mail from Brad Silverberg to Russel
Segelman with a carbon copy to both Bill Gates and Paul
Maritz dated October 5th of 1994.

Just for context, that is two days after Mr. Gates'
decision not to publish the namespace extension.
Mr. Silverberg states, quote, I am afraid that when we tell
ISVs, there will be a firestorm of protest.

Mr. Frankenberg, you mentioned that you knew Tom
Creighton, a manager of the shared code team at WordPerfect;
is that correct?

A: Yes, I knew Tom.

Q: Was Tom Creighton involved in the development of the

1229

PerfectOffice suite and shared code during this time period?

A: Yes, he was.

Q: Were you aware that when Mr. Creighton found out about
Mr. Gates' decision to take away the namespace extensions,
that he told Microsoft personally that there would be hell
to pay if they made such a decision?

A: I am sure he used words something to that effect, yes.

Q: We'll get back to that in a minute. Let's go back to
this Plaintiff's Exhibit 220.

Mr. Silverberg also stated, and I want to remind you
again that Bill Gates is copied on this e-mail, that, quote,
other ISVs using the extensions are WordPerfect, Lotus,
Semantic and Oracle.

Were you aware, Mr. Frankenberg, that Mr. Gates was
advised within two days of his decision to take away the
interfaces that WordPerfect was using the namespace
extensions?

A: Clearly that is the case and I have reviewed this
document before.

Q: Did Mr. Gates ever call you up or speak with you about
whether that was a problem for WordPerfect?

A: No, he did not.

Q: Mr. Silverberg goes on to state that these companies
will not be bashful about expressing their displeasure. It
will play out, I predict, on page 1 of the weeklies, lead to

THE COURT: I think generally -- the general
position is that that is true, but I think we all know --
that is fine.

Go ahead.

MR. JOHNSON: Thank you, Your Honor.

THE COURT: Don't testify.

BY MR. JOHNSON

Q: Let's now turn to the topic of companies not being
bashful about expressing their displeasure and take a look
at Plaintiff's Exhibit 215.

Mr. Frankenberg, this is an e-mail chain within
Microsoft detailing a survey that was done by Microsoft's
development relations group in September of 1994, that
indicates the status of independent software vendors that
were using the namespace extension mechanism. Let's turn
our attention to the survey results for WordPerfect, which
is located in the bottom of what is marked page 48 and goes
on to the next page, 49, but for now let's just turn to the
page marked 48. The survey results ask have they started
work? The survey answer says very likely based on Tom

1231

Creighton's feedback below.

Would it have been, Mr. Frankenberg, Mr. Creighton's
job to interface with Microsoft with respect to issues such
as the namespace extensions?

A: Clearly that was the case, yes.

Q: So we turn to the next page, page 49, and under the
section comments, and it states a detailed survey was sent
to WordPerfect but the results are likely to be very
informative. Tom made the comment that there would be hell
to pay in the press if we changed the interfaces from the
initial release of Chicago to the next release. They will
try to get feedback to us, but they don't want to tip their
hand.

Mr. Frankenberg, does that sound to you look Tom
Creighton was okay with Microsoft's decision to take away
the namespace extensions?

A: It sounds to me like he was mad as hell and wasn't
going to take it anymore.

MR. TULCHIN: It is just speculation, Your Honor.
The witness is being asked to look at a Microsoft document
and somehow interpret it.

MR. JOHNSON: Your Honor --

THE COURT: I think that the e-mail speaks for
itself, so the objection is --

MR. TULCHIN: So do I.

1232

THE COURT: -- sustained. This is all for
argument.

MR. JOHNSON: Your Honor, there was lengthy
cross-examination with respect to what WordPerfect told
these people.

THE COURT: I understand, and that is exactly why
it is appropriate for you to argue it.

MR. JOHNSON: Thank you, Your Honor.

BY MR. JOHNSON

Q: If we look at the bottom of the first page of this
exhibit it states that the following companies have voiced
an interest in the namespace extensions and show
extensibility and it indicates whether they have started
work. On this page it appears that the survey found that
Oracle, Semantic, Stac Electronics and DCA had started work
with the namespace extensions.

Mr. Frankenberg, were you aware that other companies
were also interested in using the namespace extensions?

A: I am not surprised that they were. I am not sure that
I was aware of which particular companies.

Q: On the next page it gives a whole bunch of other
companies, and at the top there is a reference to
WordPerfect, and it says very likely, and actually the next
one is Lotus which says very likely, and both of those add
the parenthesis but detailed information will be difficult

1233

to get.

Mr. Frankenberg, can you think of any reason from a
WordPerfect Novell perspective why detailed information
would be difficult to get from Microsoft about Novell's
plans for what they intended to do with the namespace
extensions?

A: Well, by telling Microsoft what our plans were we would
be telling our competitor in the suite business what we were
going to do, and so they would have foreknowledge of what we
were going to develop and take to market. It would be
foolish of us to be really forthcoming and telling them what
we were doing.

Q: Mr. Tulchin also asked you a number of questions of
whether you had any personal knowledge about whether people
within Microsoft were using the namespace extensions, and he
particularly talked about, I believe, Microsoft Office.
Mr. Hanson in this e-mail on the first page also evaluated
what groups within Microsoft were using the namespace
extensions under the heading there Microsoft, if we could
highlight that.

You can see there that it states that the Chicago shell
team will make use of everything. It says the Chicago
networking team, including remote access, will use the
namespace browser and explorer extensions. It also states
that the Elsewhere Company will provide the font folder in

1234

Chicago and will use the namespace browser and explorer
extensions. And then it goes on to indicate that the office
team is using IShell folder and IShell link and maybe more
to do file open and save dialogues.

Mr. Frankenberg, I take it is fair to say you were not
aware of these facts when you answered Mr. Tulchin's
questions?

A: I was not aware of these facts, but clearly I was
right.

Q: The next listing says that Capone and the Info Center
will do everything, and they were able to do their work on
other platforms, the Mac, NT and Windows 3.1 by taking the
shell source code and modifying it to their needs.

Were you aware, Mr. Frankenberg, that Capone, which was
later called Info Center had access to the shell source code
and were modifying it to their needs?

A: I was not aware of that, no.

Q: In your entire history at Novell, do you recall ever
getting shell source code from Microsoft to use with your
applications?

A: No, I do not. It certainly would have been helpful at
a point in time or two.

Q: The next line indicates that Marvel, the online service
will extend the namespace in the explorer.

Were you aware, Mr. Frankenberg, that Marvel, the

1235

online services application, was using the namespace
extensions at this time?

A: I was not.

Q: The next line says that Microsoft Access, which I will
represent to you is a Microsoft database product, would be
doing a file system view with namespace browsers, shell
extensibility, the works.

Were you aware of the product Microsoft Access, Mr.
Frankenberg?

A: I was. In fact, I still use it today.

Q: Were you aware at this time that they were using the
namespace extensions?

A: I was not aware of that, no.

Q: The next line shows that Ren, which prior testimony has
indicated was Microsoft Outlook, was originally implemented
totally as a shell extension, and that the hot debate right
now is namespace and explorer extensibility.

Were you aware that Ren was looking into using the
namespace extensions as well?

A: I was not aware.

Q: So it is fair to say, Mr. Frankenberg, that you never
had any personal knowledge regarding what was going on
within Microsoft with these namespace extensions?

A: I did not have personal knowledge, but it does not
surprise me, and it clearly shows that my belief of them

1236

using one documented call was true.

Q: Let's turn now to plaintiff's --

THE COURT: Let's turn now to a break.

MR. TULCHIN: Thank you, Your Honor.

(Recess)

1237

(Jury present)

THE COURT: Mr. Johnson.

MR. JOHNSON: Thank you, Your Honor.

BY MR. JOHNSON:

Q: Mr. Frankenberg, I would now like to turn to
Plaintiff's Exhibit 225. Mr. Tulchin showed you this e-mail
and he quoted something that came from Brad Struss. I'm
sure I'm mispronouncing that. On the first page he says,
quote, so far Stac, Lotus, WP -- meaning WordPerfect --
Oracle appear to be okay with this, close quote, in
reference to independent software vendors' reaction to the
decision of Mr. Gates.

Now Mr. Tulchin wasn't able to identify where
Mr. Struss allegedly got this information.

Q: Mr. Frankenberg, were you okay with the decision Bill
Gates had made to withdraw support for the namespace
extensions?

A: No.

1238

MR. TULCHIN: Leading.

THE COURT: He answered, but overruled.

THE WITNESS: It was definitely not okay with the
decision. It was reprehensible. They had recruited us,
evangelized us to use these extensions, then took them away.
In Mr. Gates' memo it says that they took them away in order
to allow their developers time to catch up. I don't think
that's reasonable nor fair.

BY MR. JOHNSON:

Q: At the back of this e-mail chain, in Plaintiff's
Exhibit 225, there is a question and answer document.

MR. JOHNSON: If we could turn to that page. Yes,
you are there. Thank you, Mr. Goldberg.

BY MR. JOHNSON:

Q: Which appears to be a set of talking points that were
given to people working within the Microsoft developer
relations group.

Looking down at the bottom of the first page of the
question and answer, there is a question which states, will
Info Center, Marvel and MS APPs still continue to use these
interfaces? Seems like this would be an unfair advantage.
The answer provided by Microsoft to ISVs was, Info Center,
Marvel and MS APPs will no longer use these interfaces. Do
not mention Marvel unless asked directly.

Mr. Frankenberg, do you have personal knowledge whether

1239

info center, Marvel or Microsoft APPs, in fact, no longer
used these interfaces?

A: I do not have personal knowledge of that, no.

Q: Do you have any idea why Microsoft would be instructing
its employees not to mention Marvel to ISVs?

MR. TULCHIN: Calls for speculation.

THE COURT: Sustained.

BY MR. JOHNSON:

Q: Let's turn to the last page of this question and
answer. There is a question -- I guess it's the next to the
last question and answer. Quote, what if I decide to use
some of the undocumented APIs, i.e., I am a developer that
received some of the preliminary documents on the topic.
What will the penalty be? Will you change the interfaces
that had been defined?

The suggested answer for the developer relations group
is as follows, quote, we will not arbitrarily change these
interfaces, but because of how tightly these interfaces are
tied to internals of the shell, we cannot guarantee ISVs
that try to call into them will work in future releases of
Windows 95, or even between interim beta builds. There will
be no support for ISVs who use this. It will be completely
at their own risk.

Mr. Frankenberg, would you ever recommend to your
development teams that they use APIs which may be changed or

1240

taken out between interim beta builds of the operating
system product?

A: I definitely would not recommend that.

Q: Were you aware, Mr. Frankenberg, that Windows 95 had
two more interim beta builds after the date of this e-mail?

A: I don't think I was aware of that, although it wouldn't
surprise me.

Q: Would you have authorized Novell developers to use
namespace extensions which may not work in the next interim
beta builds?

A: No, I would not.

MR. TULCHIN: Your Honor, he testified he didn't
have anything to do with the decision.

THE COURT: I'll overrule the objection. The
question was already answered.

BY MR. JOHNSON:

Q: Let's go back to the first page. Going down to the
next -- on the first page of this e-mail, going down to the
next to the last paragraph, it states, quote, as we covered
in our last -- at our meeting last Friday, we were faced
with the challenge of going to our ISVs and telling them
about Bill G's recent decision to return the namespace
extension APIs to their original system level status.
Notice the wording. Let's try not to use the word
undocumented or private APIs. That has a negative

1241

connotation to most ISVs.

Apparently, Mr. Frankenberg, these Microsoft employees
were told not to the use the word undocumented. But isn't
it a fact, Mr. Frankenberg, that that's how you understood
the decision should be characterized as undocumented APIs?

A: Yes.

Q: And that is precisely what you complained about
repeatedly to Mr. Gates?

A: Yes, it is.

Q: Let's turn now to Defendant's Exhibit 230.

Mr. Tulchin asked you some questions about the Quattro
Pro and whether Quattro Pro was a problem with getting out
the PerfectOffice suite. And you responded to almost every
one of these questions that you didn't really know how far
along they were at this point, or whether Quattro Pro was a
problem at all.

I would like to show you now what Mr. Gibb testified
about that issue.

MR. JOHNSON: Can you bring up Mr. Gibb's
testimony on this issue?

BY MR. JOHNSON:

Q: In response to the question, do you recall Quattro
Pro -- the development of Quattro Pro causing a delay in the
shipment of PerfectOffice 95 suite? Answer: No. I mean
early on, like I said, when we were first speccing out

1242

storm, we thought Quattro Pro might be critical path. So
early on before we had project plans and before we tracked
the progress, we were nervous about Quattro Pro because they
had a lot of things to do. We were nervous that they might
have a hard time getting the schedule. But they were very
conservative in their estimates and kind of overdelivered.
So it turned out to be a pleasant surprise.

Mr. Frankenberg, Mr. Gibb was in charge of the
PerfectOffice suite; is that right?

A: Yes.

Q: Would he be in the best position to know whether
Quattro Pro had anything to do with the delay in producing a
PerfectOffice suite for Windows 95?

THE COURT: This witness clearly doesn't like the
decision, he so testified. Move on to something else.

BY MR. JOHNSON:

Q: Now despite the fact that you had no reason at the time
to know that Mr. Gates had personally ordered that the
namespace extensions not be published, did you, nonetheless,
repeatedly complain to Mr. Gates about undocumented calls
and interfaces?

A: Yes, I do.

Q: When you complained to Mr. Gates about undocumented
calls and interfaces, did that include the undocumented
interfaces that you had learned about in early 1995 that
were holding up the PerfectOffice product for Windows 95?

A: Yes, it did, amongst many others.

Q: I would like to take a look now at DX-271. Mr. Tulchin
used this document to discuss with you a number of
weaknesses that the Novell business applications group
talked about -- or identified in this April 1995 business
plan. You indicated, I think, that these business plans and

1244

reviews were part of the things -- one of the things that
you instituted when you came to Novell; is that right?

A: Yes, I did. That was a very good way, a very good
discipline for the teams to evaluate their business, their
opportunities and issues.

Q: And did you encourage all these groups within the
Novell to be self-critical in doing those evaluations?

A: Very much so. In fact, I chided a number of them for
not being sufficiently critical or not looking objectively
at their weaknesses.

Q: Did you also tell them that they should point out the
strengths and opportunities presented within the group as
well as the weaknesses?

A: Yes.

Q: Now Mr. Tulchin did not share with the jury any of the
strengths and opportunities presented in this document. If
you could turn to page 8, the Bates stamp ending 356, with
respect to the company's strengths that assist business
applications, let's look at some of those.

Looking at the top of the A section there, one of those
company strengths indicated to be word processing strength
and WordPerfect install base.

Now Mr. Tulchin represented to you that WordPerfect had
an 80-percent share of the install base of word processors
on the DOS platform.

1245

MR. TULCHIN: I did not say that, Your Honor. It
wasn't install base.

THE COURT: Rephrase the question.

BY MR. JOHNSON:

Q: Well, whatever Mr. Tulchin said, he said you had an
80-percent share, and I don't recall the exact words he
used, whether it was install base, but it certainly sounded
close to the D word, which we won't mention here today.

THE COURT: It's been mentioned, just not in terms
of Novell.

BY MR. JOHNSON:

Q: Do you think this DOS install base provided an
opportunity for Novell as DOS users eventually shifted to
Windows?

A: Yes, it did, a significant opportunity, because
ultimately they would all shift from DOS to Windows, and
hopefully they really enjoyed working with WordPerfect and
we'd move with WordPerfect into PerfectOffice.

Q: Let's look at the some of the division group strengths
under 3-B, if we could. And one of those bullet points
provides -- the top one actually, strong expertise in word
processing, spreadsheets, presentation graphics and
electronic publishing tools.

Did you believe that that too was a strength of the
applications group competing with Microsoft?

1246

A: It definitely was a strength and I think they showed
their prowess in that by getting that first suite out
between June and December of 1994. Major accomplishment.

Q: There is a reference here in a few bullet points down
to PerfectFit technology. Ideal platform for suites. Way
ahead of the competition here.

Mr. Frankenberg, did you believe that WordPerfect and
Novell was way ahead of the competition with respect to
PerfectFit technology?

A: Yes, we were. We were significantly ahead and provided
the capability, as we talked about, to easily move across
platforms, and also provided that capability to our other
application developers. A great strength, of course.

Q: The next bullet point says, support of open
architectures. Can you tell us what that means,
Mr. Frankenberg?

A: Open architectures are those that have open interfaces
and open definitions that anyone can develop to with
confidence, and the result that is compatible with all the
other applications that make use of such an architecture.

Q: Down under opportunities, which is the next section
down, and particularly Section 3-C --

MR. JOHNSON: Yeah, that's it. Thank you,
Mr. Goldberg.

1247

BY MR. JOHNSON:

Q: -- states in the second bullet point, getting
PerfectOffice to be the suite of choice for all NetWare
users is a large opportunity.

Mr. Frankenberg, why was that such a large opportunity?

A: At that time we had approximately 40 million users of
NetWare. So becoming the suite of choice to 40 million
users was a huge opportunity.

Mr. Frankenberg, why did the business applications
group think that they could leverage WordPerfect to sell
Quattro Pro?

A: Because WordPerfect was such a strong word processor
that had such a strong following. And I think, as was
mentioned yesterday, the word processing part of the suite
was the one that most people made their decision based on
because that's what they used the most. Having a strong
word processor meant that we would be able to sell the suite
and Quattro Pro as part of that.

Q: Finally the last bullet point reads, quote, many OEM
opportunities for PerfectOffice and stand-alone
applications.

Was that a part of your plan that you testified to
yesterday, to sell PerfectOffice and the stand-alone

1248

applications to OEMs during this time period?

A: Yes, it was.

Q: Let's turn back briefly to the beginning of the SWOT
analysis on the page Bates stamp ending in 2354, and turning
to something Mr. Tulchin talked to you about, the top bullet
point. It states here that Office holds 86 percent of the
suite market share at this time. Apparently had revenues of
$1.4 billion in 1994.

Now is it true, Mr. Frankenberg, that your suite had
been on the market for about three months at this point in
time?

A: Three or four months, yes.

Q: We saw from other documents in your direct examination
that 74 percent of users had not yet made the decision with
respect to which suite to purchase. So regardless of
whether Microsoft held 86 percent of the suite market share
at this time, was there still lots of opportunity for Novell
in the suite market?

A: There was substantial opportunity. 74 percent of the
market hadn't made a decision yet. We had a huge install
base of WordPerfect and we had a huge install base of
NetWare, and all those were ways for us to reach customers
with a suite product.

Q: Do you remember, Mr. Frankenberg, how many hundreds of
millions of dollars in revenue Novell made from WordPerfect

1249

both in its stand alone and its suite product sales in 1995?

A: I do not recall that number. At one point I would have
known it off the top of my head, but that point is in the
past.

Q: Let me show you a slide I used in opening.

MR. JOHNSON: If we could turn to that,
Mr. Goldberg. Thank you.

BY MR. JOHNSON:

Q: This is a slide of revenue based on IDC data. Do you
know what IDC data is?

A: Yes.

Q: What is that?

A: IDC is a publishing firm that tracks the relative
market shares, amongst other things, in the computer and
software business. They also do analysis.

MR. TULCHIN: Your Honor, sorry to interrupt.
This seems to be way outside the scope of cross. It also --
I mean all these questions have been grossly leading.

THE COURT: Try not to lead. I'm not going to try
to fathom right now. If it becomes a problem later, let me
know.

MR. JOHNSON: Thank you, Your Honor.

BY MR. JOHNSON:

Q: We had some testimony and there were some questions
from Mr. Tulchin about the fact that, you know, sales had

1250

dropped off in 1995 because everybody was waiting for
Windows 95. I think you agreed with Mr. Tulchin that there
would have been some drop off in sales?

A: Yes, I do.

Q: And does this figure seven, this chart indicate that
despite that drop off in 1995, WordPerfect revenues exceeded
$250 million?

A: Yes, it does.

Q: And in 1994, can you give us a guesstimate of how many
hundreds of millions of dollars WordPerfect word processor
revenues were?

MR. TULCHIN: Your Honor, this is just counsel
testifying. This chart wasn't --

THE COURT: He's speaking objections and you're
testifying. So let's move on to something else.

BY MR. JOHNSON:

Q: In your view, Mr. Frankenberg, was there plenty of room
in the suite market in 1995 for a number two suite or even a
number three suite to be very successful from a monetary
perspective in this market?

A: There was definitely plenty of room with 74 percent of
the people not having made a decision. That's a very huge
opportunity.

1251

Q: Is it fair to say, Mr. Frankenberg, that in order to be
successful in the suite market, you had to have a suite to
sell?

A: I think so, yes.

Q: In 1995, when Windows 95 came out in August, Novell
didn't have a suite that was built to run on Windows 95,
right?

A: We did not, that's true.

We had one that was built to run on Windows 3.1 that
ran on Windows 95, but did not take advantage of any of its
capabilities.

THE COURT: The answer is yes, not no?

THE WITNESS: You are right, Your Honor. Yes, we
did have one, but it didn't -- but it was an earlier version
and gave the user no additional functionality.

THE COURT: I understand.

THE WITNESS: Thank you.

BY MR. JOHNSON:

Q: Mr. Frankenberg, Mr. Tulchin had a great deal of
questions for you about WordPerfect 6.0, which was a product
that was actually put out by WordPerfect prior to the merger
with Novell, and the fact that it did have some issues and
you said it had some functionality issues, and Mr. Tulchin
repeatedly referred to an internal evaluation that
characterized it as slow and buggy.

1252

Mr. Gibb testified that the product was only slow if
you had a machine or a computer that didn't have a lot of
memory, such as machines with only four megabytes of memory
or less. Were you aware that WordPerfect 6.0 was only slow
on low memory machines?

A: I was not aware of that, no.

Q: At the risk of overkill, let me show you what's been
marked as Plaintiff's Exhibit 110. This is a PC Computing
Magazine's award for the best products of the year for
December 1993, and WordPerfect 6.0 for Windows won the MVP
award for 1993. And if you conclude -- go to the end of
this article, the last paragraph on the next page.

MR. JOHNSON: I want the end of the article,
Mr. Goldberg. You may have been there. I can't see.

MR. TULCHIN: Your Honor, this is subject to the
objections that we have discussed.

THE COURT: Absolutely. Absolutely. If you like
that, it says Windows does it all.

MR. TULCHIN: It's still hearsay, Your Honor.

MR. JOHNSON: Could you bring up the last
paragraph of this? Not that one, the paragraph of the text.
Not the pricing.

THE WITNESS: Just in case you're interested.

BY MR. JOHNSON:

Q: And PC Computing Magazine concludes, is there any

1253

reason not to get WordPerfect now? No way. Version 6.0
strikes a perfect balance between Windows interface
standards and WordPerfect functionality. Are there serious
reasons to buy it? Only if you want a word processor that
takes the brakes off of what you can do with a document --
from word processing to spreadsheet computations to
drawing -- and makes the process so easy that it's more fun
than work, close quote.

Does this refresh your recollection, Mr. Frankenberg,
that not everyone thought WordPerfect 6.0 was slow --

THE COURT: I'm going to strike the question and
strike the whole thing under 403. Whatever purpose there is
for getting these in is so outweighed by your testifying
about it, I'll strike the whole thing.

Please understand I'm letting all these
evaluations in for limited purpose. The person is not here
to be cross-examined, and that was inappropriate.

Move on.

MR. TULCHIN: Your Honor, I wonder if we could
take it down, please?

MR. JOHNSON: Take it down, please.

Your Honor, I was only offering it for the same --

THE COURT: Whatever you offered it for, you know
darn well what you were doing. It was inappropriate. Move
on.

1254

The person that wrote that is not here to be
cross-examined.

MR. JOHNSON: Well, then, Your Honor, I would like
to turn to Plaintiff's Exhibit 378, which is what Microsoft
said about WordPerfect 6.0 for Windows.

BY MR. JOHNSON:

Q: Mr. Frankenberg, this is an internal Microsoft document
written by Microsoft. Turning to the first page of this
competitive product analysis with respect to WordPerfect
6.0, it states, quote, the industry generally lauded
WordPerfect's robust and feature-filled Windows word
processor, as it seemed like WordPerfect finally created an
application that has excellent high-end DTP features, 98
spreadsheet functions, and its trademark text editing and
proofing tools. This product is positioned to be a one-stop
solution for every level word processing user.

Mr. Frankenberg, does that conform to your recollection
that WordPerfect 6.0 was generally lauded in the industry?

A: Yes. That is a very good summary.

Q: In the next paragraph, Microsoft goes on to say,
WordPerfect word processing sales still rival those of Word.
In the past year, WordPerfect for Windows unit shipments
increased by 60 percent while Word's increased only by six
percent. It goes on to say that the point is, WordPerfect's
success up to now shows it is making inroads in the Windows

1255

market and not just by converting their DOS installed base.

Mr. Frankenberg, do you agree, is it your recollection
that you were winning market share not simply by converting
the DOS installed base?

A: Yes.

MR. TULCHIN: He's leading again, Your Honor.

THE COURT: It is leading. It's overruled. This
is a Microsoft document. A whole different set. Please
don't just lead the whole time.

Just go on. I've overruled the objection.

MR. JOHNSON: Can we bring up the last paragraph,
Mr. Goldberg?

BY MR. JOHNSON:

Q: I won't read that. I will let you read it for
yourself, Mr. Frankenberg. Starting with the bottom line
there, could you read that to yourself.

A: Yes.

Q: Mr. Frankenberg, did WordPerfect continue to make
improvements to WordPerfect with additional releases?

A: Yes, we did.

Q: Do you recall that there was a WordPerfect 6.0A
release?

A: Yes, that happened shortly after the announcement.

Q: And do you recall how that was received in the
marketplace?

1256

A: That was received positively.

Q: Let me show you what has been marked as Plaintiff's
Exhibit 162-A.

MR. JOHNSON: Mr. Goldberg, don't put this up yet,
please.

MR. TULCHIN: Your Honor, could I just have a
moment? I don't know what was removed here.

THE COURT: Of course.

MR. JOHNSON: Your Honor, we would just remove the
article about the product.

MR. TULCHIN: No objection.

THE COURT: That's fine. Go ahead.

BY MR. JOHNSON:

Q: So this exhibit, Plaintiff's Exhibit 162-A, shows Mr.
Bill Gates' reaction to WordPerfect's 6.0A. Mr. Gates
states, quote, I'm amazed at their responsiveness. This is
very scary and somewhat depressing. This is as much as we
plan to do for 1995. A lot of work in this release.

Mr. Frankenberg, do you recall that WordPerfect 6.0A
was again named by PC Computing Magazine as the MVP award
winner for 1994?

MR. TULCHIN: Same objection, Your Honor.

THE COURT: Overruled.

Go ahead.

THE WITNESS: Yes, it was. We were very proud of

1257

that.

BY MR. JOHNSON:

Q: Were you also aware it was chosen over Microsoft Word
for Windows as the best word processor for 1994?

A: Yes, I was.

Q: Then again, Mr. Frankenberg, Novell, after it had
purchased WordPerfect, issued another release of WordPerfect
called WordPerfect 6.1.

A: We did release 6.1, yes, with further improvements.

Q: Do you recall that was also well received by the
industry?

A: It was very well received by the industry.

Q: Do you recall that WordPerfect for Windows 6.1 received
the Editor's Choice Award for PC Magazine in November of
1995?

A: Yes, I was, and very happy to see it.

Q: Mr. Frankenberg, Mr. Tulchin asked you a series of
questions about your level of involvement regarding the
course the company took after Microsoft took away the
namespace extensions. Would such decisions ordinarily be
made by the people in charge of the business unit?

A: Yes, they would.

Q: And I believe you testified --

A: Unless they encountered difficulties that they needed
to raise to my attention.

1258

Q: And I think you testified that certain people were
identified, including Mr. Rietveld and Mr. Calkins; is that
correct?

A: Yes.

Q: Were these people highly placed executives that you
trusted their judgment?

A: Mr. Rietveld was a former president of WordPerfect
Corporation. He was a vice president of Novell. He had run
a very substantial business and knew a lot more about word
processing and the office products than most other people in
the industry. I trusted him fully.

Q: You also mentioned the possibility that Mr. Glen Mella
may have been involved. Now Mr. Mella was a marketing guy,
right?

A: Mr. Mella was a vice president of marketing for the
applications business group.

Q: So he was not a technical person, right?

A: No, he was not.

Q: He was not a developer in any sense of the word?

A: No, he wasn't.

It was a good thing he didn't write any code too.

Q: Do you have any personal knowledge whether Mr. Mella
was actually involved in any decision with respect to how to
develop the product for Windows 95 after Microsoft took away
the namespace extensions?

1259

A: I'm sure he was involved, but I can't pin down exactly
what meetings or whatever he was involved in.

Q: What I'm asking you, do you actually have personal
knowledge that he was, in fact, involved?

A: Yes, he was, in fact, involved.

Q: And what do you recall about that? I thought you said
you didn't recall who made that decision?

A: I'm sorry. You lost me.

THE COURT: You lost me too.

BY MR. JOHNSON:

Q: I'm just trying to figure out, Mr. Frankenberg -- I
know you thought Mr. Mella may have been involved.

THE COURT: That's not what he said. He said he
had personal knowledge he was involved.

MR. JOHNSON: Yes, and I'm asking him what is that
personal knowledge.

THE WITNESS: Mr. Mella was the vice president of
marketing responsible for the business applications. He
would have been involved in all decisions that were made
regarding the marketability, delivery schedule, promotions,
et cetera, of the PerfectOffice suite.

BY MR. JOHNSON:

Q: Mr. Frankenberg, let's take a look at Defendant's
Exhibit 621. This is Novell's 10-K filing with the
Securities and Exchange Commission for the period ending

1260

10-28, 1995. I believe Mr. Tulchin drew your attention to
page 8 of this exhibit. And Mr. Tulchin went on at some
length about the fact that 10-Ks are filed with the SEC,
that you personally signed these statements, and he tried to
get you to agree that the only reason Novell sold the
WordPerfect office productivity applications was because
they did not contribute to Novell's network focus and core
business.

As an initial matter, this document was filed on
January 26th, 1996. So this filing would have been made
some couple months after you made the decision to sell the
business applications; is that correct?

A: That's correct.

Q: At that point Novell was refocusing its business on the
NetWare product?

A: Yes, and other associated networking products.

Q: Would it be correct to say that these statements in
this 10-K are forward looking with respect to Novell's plans
for the future, not the past?

MR. TULCHIN: Again, leading, Your Honor.

THE COURT: Sustained. Don't lead.

BY MR. JOHNSON:

Q: Mr. Frankenberg, were the statements made in this 10-K
forward looking?

MR. TULCHIN: Same objection.

1261

THE COURT: Or not.

Go ahead.

BY MR. JOHNSON:

Q: Go ahead, Mr. Frankenberg.

A: Yes, they were forward looking savings in this 10-K.

Q: Now you told Mr. Tulchin more than once that the reason
Novell sold WordPerfect was that it had become very clear
that Novell could not compete in that market and that it was
a tilted playing field, and that no matter what Novell did,
it would not be able to succeed because the playing field
was unfairly spewed, and I'm quoting from your testimony.

Mr. Tulchin persisted with you with respect to the
statements made in this Novell 10-K, and Mr. Tulchin further
stated to you, and I'm quoting again from the transcript at
page 1107, lines 16 and 18, of the official transcript we
received last night, quote, feel free to look elsewhere or
anywhere you want, anywhere you think you might find it,
referring to your claim that you sold the business
application because of Microsoft's unfair treatment.

Did Novell also file a statement with the Federal Trade
Commission in Washington, D.C. detailing the reasons why
Novell had announced plans to sell the applications group?

A: Yes, we did.

MR. TULCHIN: Objection, Your Honor. I think this
is off limits.

1262

THE COURT: Overruled.

BY MR. JOHNSON:

Q: Let me show you what has been marked Plaintiff's
Exhibit 346.

MR. JOHNSON: For identification only,
Mr. Goldberg.

THE COURT: I gather if it's for identification
only, you shouldn't put it up yet.

MR. JOHNSON: I hope he understood it.

THE COURT: That's fine. It's my fault.

BY MR. JOHNSON:

Q: Was this the statement that Novell, Inc. presented to
the Federal Trade Commission in Washington, D.C. on December
1st, 1995?

A: Yes, it is.

Q: Turning your attention to page 8 of this statement,
please read to yourself the second full paragraph.

THE COURT: It shouldn't be up.

MR. JOHNSON: It's not up, Your Honor. The screen
is blank. You get to see it, but the jury does not.

THE COURT: I'm sorry.

MR. TULCHIN: Your Honor, we discussed this in
Baltimore and the Court ruled it was inadmissible.

THE COURT: Yeah, but I haven't heard the
cross-examination.

1263

Go ahead.

MR. JOHNSON: Thank you, Your Honor.

THE WITNESS: Yes, sir.

BY MR. JOHNSON:

Q: Does this paragraph detail those reasons for its
decision to divest its applications group, the publisher of
WordPerfect, Quattro Pro, and other PerfectOffice
productivity applications?

A: It's a very good summary of the reasons why we decided
to do that.

Q: Is this statement consistent with your testimony that
the reason you decided to sell is that it had become very
clear that Novell could not compete in the applications
market, that it was a tilted playing field, and that no
matter what Novell did, it would not be able to succeed on
such a playing field?

MR. TULCHIN: Same objection.

THE COURT: Overruled.

THE WITNESS: Yes, it clearly states that.

MR. JOHNSON: Your Honor, I move for the admission
of Plaintiff's Exhibit 346.

THE COURT: No.

MR. JOHNSON: With the Court's indulgence, Your
Honor.

THE COURT: It goes on.

1264

BY MR. JOHNSON:

Q: Let me show you, Mr. Frankenberg, Plaintiff's Exhibit
467.

Mr. Frankenberg, do you recognize this document?

A: Yes, I do.

Q: Mr. Tulchin got into the issue of bugs?

MR. TULCHIN: We do have an objection to this
document, Your Honor.

MR. JOHNSON: I'm sorry. Take it down, please. I
wasn't aware he had an objection.

THE COURT: I am going to sustain the objection to
the document.

MR. JOHNSON: Can we be heard on that, Your Honor?

THE COURT: Sure, but why don't you just ask a
question and then I'll hear it.

A: The situation that occurred was that shortly before the
shipment of Windows 95, Microsoft published a list of 200
purported bugs with our current PerfectOffice suite. In
other words, the one that was written for the earlier
version of Windows. And it was important that it -- as
we've talked about before, it was important that it run on

1265

Windows 95. So they published a list of 200 purported bugs
with our current suite running on Windows 95. Almost all of
those had been fixed. And it had a significant detrimental
effect on our introduction of that product in conjunction
with Windows 95.

Q: Did you complain to Microsoft about their publishing
these 200 bugs that allegedly were impacting PerfectOffice
3.0?

A: Novell complained aggressively about that.

Q: This statement you said came out right before the
release of Windows 95?

A: Shortly before. I don't remember, but very close to
the release, yes.

Q: Thank you, Mr. Frankenberg.

Today Mr. Tulchin asked you a series of questions about
PerfectOffice and whether PerfectOffice, during your tenure
with Novell, had come out in a cross-platform version. I
think you previously testified that WordPerfect historically
had been cross-platform, and that during your tenure
WordPerfect continued to be brought out under multiple
platforms; is that right?

A: That's correct.

Q: Now in order to run cross-platform, would it be
necessary for the shared code running underneath WordPerfect
to be able to run on those different operating systems?

1266

A: Yes, it would be essential for that to happen.

Q: Once WordPerfect's word processor had the shared code
to operate on all those differing operating systems, what
issue, if any, would exist with making PerfectOffice suite
cross-platform?

A: The issues that would be involved would be largely --
well, it would depend a bit on the platform. There may be
some platform unique things that would need to be taken care
of within the applications. And beyond that there would be,
of course, a significant amount of testing to make sure that
it ran properly.

Q: But the shared code, once it had been ported to another
operating system, could run under any of the applications
within the PerfectOffice suite?

A: That's correct. It was one of our strengths.

Q: There were a number of questions directed to you with
respect to Novell's NetWare and with respect to beta
versions of Novell's NetWare. During your tenure with
Novell, did you ever recall a time when Novell withdrew
significant functionality, withdrew APIs that had previously
been published?

A: No, I don't recall us ever doing that.

Q: In fact, do you ever recall that, period, in your
history in the industry by any company other than Microsoft?

A: I don't recall that, no. Not that it might not have

1267

happened, but I don't recall.

MR. JOHNSON: Nothing further, Your Honor.

THE COURT: Thank you, Mr. Johnson.

Anything further, Mr. Tulchin?

MR. TULCHIN: I will try to be quick, Your Honor.
Do the best I can.

RECROSS-EXAMINATION

BY MR. TULCHIN:

Q: Mr. Frankenberg, hello again.

A: Hello.

Q: You were shown Exhibit 467, and I think you testified
something about Microsoft -- you don't need the document,
sir, but if you want to look at it, that's fine. It was not
shown to the jury.

A: Could you remind me of what that document is?

Q: Yes, I'm going to.

A: I don't remember by numbers.

Q: Of course. Of course.

I should have started this way. You gave some
testimony that just before Windows 95 came out, Microsoft
published a list of bugs. Do you remember that --

A: Yes.

Q: -- a few minutes ago?

I think you said that these were bugs that pertained to
the old version of PerfectOffice, PerfectOffice 3.0,

1268

correct?

A: Correct.

Q: We looked at Exhibit 6 this morning. That was the one
that said Dave Miller, remember that, in October of '95?

A: I do remember that, yes.

Q: And Exhibit 6 -- if we can put that back up. Exhibit 6
is about the same subject, according to your testimony, it's
about bugs in Windows 95 that affected PerfectOffice 3.0,
correct?

A: Correct.

Q: And here in this memo we hear it reported that Dave
thinks it's mostly our fault. Isn't that right?

A: That's what it says, yes.

Q: Thank you, sir.

Now you also said that with respect to these bugs --

A: May I expand on that a moment?

Q: Well, let me ask my question, Mr. Frankenberg, if I
may.

MR. JOHNSON: Your Honor, he wanted to expand on
his prior answer.

THE COURT: I think he expanded before in a way
which was inappropriate, so no.

BY MR. TULCHIN:

Q: Mr. Frankenberg, you said that around August of '95
when this issue of the bugs came up, you complained

1269

aggressively to Microsoft.

A: I said that Novell complained aggressively to
Microsoft.

Q: Yes, that's what I should have said, Novell.

Now, in contrast, in October 1994, when Mr. Gates made
the decision about the namespace extension APIs, as far as
you know, there was no complaint in writing ever made by
Novell to Microsoft, correct?

A: As far as -- I have not seen any documents, that's
correct.

Q: Nothing in November of '94, true?

A: No documents, yes.

Q: No documents in December of '94?

A: No documents that I know of in December of '94.

Q: And your complaints aggressively in August of 1995 were
about the bugs, and those were put in writing, correct?

A: Yes.

Q: But there was no writing from Novell to Microsoft, as
far as you know, in January of '95, true?

MR. JOHNSON: Your Honor, he stated that there
were no writings.

THE WITNESS: Yes.

THE COURT: If there are no writings at all, there
are no writings in the years. There's no writings.

MR. TULCHIN: Thank you, Your Honor.

1270

BY MR. TULCHIN:

Q: Now --

A: To my knowledge.

Q: Yes, and I think that's what you said, Mr. Frankenberg.
But you don't remember any writing and in preparing for your
testimony you didn't see any writing, true?

A: Correct.

Q: Could we look at Exhibit 225, which Mr. Johnson showed
you on redirect a little while ago. This is -- the first
page is an e-mail from Brad Struss to Doug Henrich,
October 12th, '94. And below that there was an e-mail from
Scott Henson -- this is an internal Microsoft e-mail
chain -- also of October 12, '94. On the second page of
Exhibit 225, towards the bottom, there is a paragraph which
says, this decision not only affects people outside of
Microsoft, but inside the company as well. All applications
within Microsoft which were originally implementing these
interfaces have been required to stop.

Now, Mr. Frankenberg, you looked at this earlier, this
same document, and I think you offered your views about what
pieces of Exhibit 225 mean. Do you remember that?

A: Yes.

Q: And this was, of course, a Microsoft document that you
hadn't seen in 1994 or '95, true?

A: Correct.

1271

Q: Do you have any reason whatsoever to doubt that all
applications within Microsoft which had been implementing
the namespace extension APIs were required to stop as of
October '94?

A: Do I have any -- please repeat the question.

Q: Do you have any information to the contrary of what is
stated here, that Microsoft applications were not permitted
to use the namespace extension APIs?

A: That's not exactly what it says. It says that they had
to stop development. It doesn't mean they couldn't continue
to use what they had already done.

Q: Do you have any reason, sitting here today, to doubt
that as of October 1994, Microsoft's applications were
required to stop using the namespace extension APIs?

THE COURT: I think it's implementing. Doesn't it
say implementing?

MR. TULCHIN: It just says stop, Your Honor.

THE COURT: Go ahead.

THE WITNESS: Could you repeat your question?
Sorry to ask you again.

1272

BY MR. TULCHIN:

Q: I think you said on cross-examination earlier that you
don't know whether or not Word or Excel or Office actually
as released used the namespace extension APIs?

A: I do not know that, that's true.

Q: Do you have any reason to doubt that as of October, all
the Microsoft applications were required to stop using those
APIs?

A: This says stop development. It doesn't say stop using.

Q: The word development is not there, Mr. Frankenberg. I
don't want to argue with you.

A: It says stop.

Q: Stop. I just want you to answer my question. Do you
have any reason to doubt that they stopped?

A: I do not have any reason to believe that they didn't
stop development with those APIs.

Q Could you look at Exhibit 215? Mr. Johnson showed you
this on redirect. And on the first page at the top --

A: I'm sorry. Which one? This doesn't have labels on all
of them.

Q: I'm sorry. It's Plaintiff's Exhibit 215. It's on the
screen in front of you, but if you want me to help you find
the hard copy, I will.

A: I'll find it.

Yeah, here it is.

1273

Q: Thank you, sir.

You will see that at the top there is an e-mail from
Brad Struss, September 22, '94. And that e-mail is more
recent in time than the e-mail from Mr. Henson that
Mr. Johnson showed you in this document. Would you agree
with that?

A: What was the date of Mr. Henson's --

Q: It actually doesn't say, Mr. Frankenberg, but an e-mail
chain normally has the most recent one on top followed by
the less recent, true?

A: That's true. They could have been pretty close to each
other. There's no way of telling from this.

Q: Well, let me suggest there is a way of telling. If you
look at the first three paragraphs of Mr. Struss's e-mail,
he says, below is a summary, Scott HE -- that's Scott
Henson -- pulled together from a couple of weeks ago of what
ISVs current thoughts are. And Mr. Johnson showed you
Scott's summary of a couple weeks earlier.

I want to show you what Mr. Struss said about
WordPerfect as of September 22nd. Just go down one
paragraph. It says WordPerfect. They have not begun any
work on IShellFolder, IShellView, et cetera. I know that on
cross you told me that you didn't know what the namespace
extensions were, but let me just represent to you that
IShellFolder and IShellView are two of them. Okay?

1274

A: Okay.

Q: Right?

A: How many others were there?

Q: Two.

A: Okay.

Q: Some would say three, but we won't debate that now.

A: All right.

Q: What Mr. Struss's e-mail says of September 22nd, 1994,
is that WordPerfect hasn't begun any work on these APIs. Do
you see that, sir?

A: On those two, that's what it says.

Q: Correct, et cetera.

Now do you doubt that Mr. Creighton of Novell told
Mr. Struss around September 22nd of 1994 that Novell had
not -- Novell/WordPerfect had not begun any work yet on
these APIs?

A: I have no way of answering your question, sir.

Q: Well, you answered Mr. Johnson's question about the
same document and Mr. Henson's e-mail later on which
reported on what he understood WordPerfect was doing. You
didn't have any problem answering those. So I just would
ask you again, do you have any reason to doubt that
Mr. Creighton told Mr. Struss, around September 22nd, that
WordPerfect hadn't begun any work yet on the namespace
extension APIs?

1275

A: Sir, I have no way of knowing.

MR. JOHNSON: Objection, asked and answered.

THE COURT: Overruled.

THE WITNESS: What Mr. Creighton said to
Mr. Struss or whether Mr. Struss got this information from
Mr. Creighton, I have no way of knowing.

BY MR. TULCHIN:

Q: Mr. Frankenberg, early on in the redirect I think you
said that Novell didn't want to give information to
Microsoft, and we were looking at this document later in
where Mr. Henson says it's going to be hard to get
information from WordPerfect. Do you remember that?

A: Yes.

THE COURT: You mean later in or earlier?

MR. TULCHIN: I'm sorry, Your Honor?

THE COURT: Later in or earlier?

MR. TULCHIN: Later in.

THE WITNESS: That's a good point, Your Honor.
Earlier in time, later in --

BY MR. TULCHIN:

Q: I think what you said then is that Novell/WordPerfect
didn't want to give information to Microsoft because
Microsoft was a competitor, correct?

A: There was -- we were circumspect about that, yes.

Q: Is it your view that Microsoft was required to give

1276

information to Novell, its competitor, to help Novell build
a better product to compete against Microsoft?

MR. JOHNSON: Objection.

THE COURT: Sustained.

MR. JOHNSON: Thank you, Your Honor.

THE COURT: You don't have to thank me. That's my
job.

BY MR. TULCHIN:

Q: Now you were shown some reviews -- product reviews in
magazines, correct?

A: Yes.

Q: Am I right that in 1994 and '05, and throughout that
time period, there were many, many magazines that covered
the PC industry?

A: Yes, there were.

Q: Would you say there were dozens of magazines that
reviewed software like word processing and spreadsheet
software?

A: Could easily have been that many. I don't know the
exact number. There were a handful that were significant
and followed closely.

Q: There were many, many of these magazines that did
reviews on a frequent basis?

A: Yes, there were.

Q: Right?

1277

A: Yes.

Q: Sometimes a WordPerfect product might come out ahead in
one review and sometimes a Microsoft product would come out
in another -- come out ahead in another, true?

A: I'm sure that's possible, yes.

Q: Isn't it true, Mr. Frankenberg, that over the period of
around '93, '04, '05, Microsoft products won more of these
product reviews in magazines and other trade press
publications than Novell's did?

MR. JOHNSON: Objection, Your Honor. How is this
witness to answer that question?

THE COURT: He's going to say he doesn't know.

THE WITNESS: I'm going to say I have no way of
knowing.

MR. TULCHIN: Thank you.

I have nothing else, Your Honor.

MR. JOHNSON: Your Honor, I have one question.

THE COURT: Yes, and I think I know what it is.
Go ahead.

MR. JOHNSON: I hate to be so predictable.

THE COURT: I could be wrong.

FURTHER REDIRECT EXAMINATION

BY MR. JOHNSON:

Q: Mr. Frankenberg, Mr. Tulchin went into a great bit
about going month by month and there being no writings. I

1278

just want to make sure we have your testimony from before
that, in fact, you wrote to Mr. Gates about the problem of
undocumented calls and interfaces in 1995, and those letters
were in writing?

A: Yes, they were.

MR. JOHNSON: Thank you.

THE COURT: Next witness.

Thank you, Mr. Frankenberg.

THE WITNESS: Thank you.

MR. JOHNSON: Your Honor, we're going to show some
videotaped transcript. Maybe a five-minute -- a short
break?

THE COURT: Do you want five minutes just to
stretch your legs and set up the equipment. I'm ready any
time.

(In chambers conference)

MR. SCHMIDTLEIN: There was an issue that just got
brought to us this morning. The reason why we're in here,
we think the reporters are out there. There may be -- this
is today's Deseret News. I'm told is a very --

THE COURT: Deseret, that's how it's pronounced?

MR. JARDINE: Deseret News.

MR. SCHMIDTLEIN: We understand is a very widely
read newspaper, and one that a good deal of the jury --
frankly, the front page of it, the front page of the paper

1279

does have an article about yesterdays' proceedings, and
included is some reporting and characterizations of comments
you made yesterday. And I am not going to go into whether
the reporters got it right or wrong, the fact of the matter
is they are there, and as we get to sort of some of the more
high profile witnesses, Mr. Frankenberg, we just wanted to
sort --

THE COURT: Ask the jury, or just tell them I
think probably.

MR. SCHMIDTLEIN: I don't think -- I'm not asking
that we poll the jury right now as to whether anybody read
it. I think it's probably -- and, you know, we do
appreciate --

THE COURT: It's a good caution. I appreciate
that.

MR. SCHMIDTLEIN: We find it useful to get your
views.

THE COURT: I appreciate that. I appreciate that.
I still was flabbergasted.

MR. JOHNSON: Your Honor, if you could hold your
comments and perhaps bring us into chambers if you feel you
need to talk to us.

THE COURT: That's fair.

MR. JOHNSON: This is very damaging if a juror,
you know, reads this and finds out that the judge in the

1280

case thinks one of --

THE COURT: It's a fair comment.

MR. JOHNSON: -- our top witnesses -- you are
flabbergasted what he has to say, that's incredibly
prejudicial.

THE COURT: It's a fair comment. I will --

MR. TULCHIN: They were instructed not to read --

THE COURT: I understand. If you want me to
ask -- I won't ask.

MR. JOHNSON: We would only ask -- we understand
Your Honor likes to comment to us and let us know what you
think, we appreciate that, but --

THE COURT: I appreciate that, but I'm trying to
be fair to you, and there are two big problems in your case
and they are going to come to the floor next week.

MR. JOHNSON: I understand that. You made that
clear. I just only ask --

THE COURT: No. I've told you as much as I'm
going to tell you. My biggest concern is to let you know
there are gaps, or if there's something I'm missing, let me
know. That's a fair comment.

(In chambers conference concluded.)

(Jury present)

THE COURT: How long is the video?

MR. JOHNSON: I've got a selection of choices to

1281

make. I am trying to find one that will be short.

THE COURT: When it's convenient for you, we'll
break around quarter of.

MR. JOHNSON: That's going to be a 15 minuter.

Could you do Steve Sinofsky now or not?

I originally planned to play a bit longer one,
Your Honor.

THE COURT: How long?

MR. JOHNSON: The longer one is 36 minutes. The
one I'm thinking of now is only 12, which would probably be
perfect.

THE COURT: Play the 36-minute one and we'll
break.

MR. JOHNSON: You want to do the 36-minute one?

THE COURT: And we'll break at some time. There
is nothing magic. It seems to work. You come back at
12:00, then we have an hour and a half.

MR. JOHNSON: So, Your Honor, we're now going to
play the videotaped portions of the videotaped deposition of
Microsoft executive James Allchin. This was taken
January 8th of 2009. And, as I mentioned, it's about 36
minutes long.

(Videotaped deposition of James Allchin was
played.)

Q: Good morning, Mr. Allchin. Thank you for your time

1282

today.

Where are you currently employed?

A: I'm not.

Q: How long ago did you leave your employment with
Microsoft?

A: At the -- I don't remember the exact date. The
beginning of 2007.

Q: Okay. And did you take employment at that time --
other employment outside of Microsoft?

A: No.

Q: Okay. Now from your prior testimony, I understand that
you were hired in 1990 by Microsoft; is that correct?

A: Yes.

Q: Okay. And I believe you described in one of the
depositions that you were hired to set Microsoft's
networking strategy; is that correct?

A: Yes.

Q: In that context, what does networking mean?

A: Having the ability, for multiple machines, to
communicate with each other, and then the -- at a physical
level -- and then the software above that to create a more
unified homogenous view of the resources that are available
of multiple PCs or multiple other machines. You want it to
appear like all those resources are combined together at
your disposal.

1283

Q: And those resources that you wish to appear to be
combined together could be on different machines, different
places, including the Internet or various disks on your home
machine, if you will; is that correct?

A: Right. Certainly in 1990, you know, the vision was a
little bit different because some -- the Internet, although
it was there, most of the world hadn't realized it yet. But
the concept was something that I believed in from the
beginning, along with some others.

Q: Now when you say from the beginning --

A: From the beginning of 1990.

Q: Okay.

A: But I actually believed that before with my work at
Banyan Systems.

Q: Okay. When did you first come to believe that? By
that I mean the importance of the visual -- the
visualization of various resources, as you've described it.

A: Probably in the very early '80s before -- either while
working on my master's or working on my Ph.D. In that time
frame.

Q: Where did you get your master's?

A: At Stanford.

Q: Your Ph.D.?

A: George Institute of Technology.

Q: Is that Georgia Tech?

1284

A: Yes.

Q: Shortly after you began your employment at Microsoft,
you began working on the NT code base; is that correct?

A: Yes.

Q: Can you describe for me what the NT code base was at
that time? I'm talking now 1991, say.

A: There were a number of limitations in the design of
Windows 3.1, along with its predecessor of DOS, that were
not modern operating systems. It wasn't designed as a
modern operating system. It didn't have multitasking. It
had no security to speak of. It didn't support
multi-processors. Networking was quite limited, et cetera.

NT was a start over while still trying to maintain the
user interface of Windows. So the idea was you replumb the
bottom of the operating system and maintain the application
interfaces so that the applications that have run before
could still run, but get the access of more powerful
multi-processing machines.

It was also a portable operating system, so it was a
way to move it onto, at that time, what we thought were
going to be alternatives to the Intel architecture, which
included MIPs, Alpha from digital. I can't remember what
else we moved it to, but it seemed like there were some
others as well.

So it was -- hadn't shipped at that time. Dave Cutler

1285

and a set of other people were working on it, and I would
say that it was maybe being worked on a couple of years at
that point.

Q: Did you, in the mid 1990s, view Novell as a competitor
to Windows NT?

A: Yes.

Q: And why was that?

A: Because of NetWare.

Q: As part of your vision of unifying the views of places
and information, did you seek to have Microsoft's future
developments bring together the local operating system and
the network?

A: Yes.

Q: And would that include work for the benefit of
independent software vendors applications?

A: Yes.

Q: The provision of APIs to independent software vendors?

A: Yes.

Q: What benefit did you intend to provide to independent
software vendors by developing toward APIs that unified
views across the local computer in the network?

A: To make it easier for them.

Q: To make it easier for the ISVs?

A: Uh-huh. (Affirmative) Honestly, they could do it with
or without the operating system, but to make it easier for

1286

them.

Q: Okay. In fact, I think you've testified somewhere that
something like the best line of code is the line that isn't
written. Do you recall that?

A: No, but I think I've said it before.

Q: Okay. And I believe you said in the context of Windows
providing APIs such that the ISVs don't have to write the
code themselves; is that correct?

A: That's right.

Q: What is the benefit of providing that API first to the
ISV?

A: First to the ISV? I'm sorry. I'm not following you
here.

Q: What benefits -- at the risk of asking the obvious,
what benefits does providing that API -- and let's even stay
on the model of an API that unifies views to an ISV as
compared to having the ISV do it themselves?

A: Less code for them.

Q: Does it also lead to consistency in the look and feel
of the various applications on the Windows platforms?

A: It could. It could.

Q: Would that be a benefit to Microsoft?

A: Benefit to customers, yeah, and therefore Microsoft.

Q: Okay. It was a benefit to customers to have that
common look and feel among applications that are using a

1287

common set of APIs; is that correct?

A: Okay. The look and feel is different than the APIs.
The APIs make it simpler. If the APIs have nothing to do
with user interface, then it's up to the APPs to do
something about it. If the APIs are common dialogs or
things like that that actually embody the use of the
transparency across the net into a user interface -- the
applications used -- then that will get the consistency in
terms of the interface. So some APIs have nothing to do
with the user interface.

Q: Okay. Fair enough. Were you recommending at this time
that Microsoft begin to develop and provide APIs to unified
views, as we've been discussing unified views?

A: What time?

Q: Let's start with the time of this document, 1990.

A: Do you want me to read it, because I haven't a clue.
18 years ago.

Q: Whether -- I'm not trying --

A: I don't know what I was recommending.

Q: I'm not trying to trap you with regard to what that
document says. I'm just --

A: I've believed in unifying views for a very long time.
That I said earlier. Unifying the view between what's local
and what's remote or, if you can't, making it very clear
what's local, what's remote.

1288

I have said that. It's probably in my Ph.D. thesis. I
don't know.

Q: As part of that belief in unifying views, did you, in
your work at Microsoft -- let's say throughout the early to
mid 1990s -- seek to provide APIs that would allow ISVs to
unify the views?

A: When you say views, are you talking about user
interface, or are you talking about technically so that, you
know, a remote disk looks like a local disk?

Q: Exactly that -- the remote looking like the local.

A: I think that we have tried to do that.

Q: Mr. Allchin, if you could turn to page 6 of Exhibit 1,
I will have a couple of questions, and then we'll get off
this document.

Under heading 2.4, in the second sentence you write,
applications drive the world. Do you see that?

A: Yes.

Q: Do you believe that to have been a true statement when
you wrote it?

A: I assume so. I wrote it.

Q: Do you still believe it to be a true statement?

A: Yeah.

Q: Was there any time at which you can think when it was
not a true statement?

A: Well, the word applications has changed over time.

1289

Solving people's problems drive the world, not technology.
And if you put that in place of applications, I believe it
will -- it has been true and will always be true.

Q: Okay. What did the word applications mean to you at
this time, 1991?

A: I assume solving people's problems, you know, whether
it be writing a piece of e-mail or writing a document for a
legal brief, or whatever.

Q: Word processors and spreadsheets would be products that
solve people's problem in the sense that you use the term?

A: They are tools, yes.

Q: They would be applications, as you used the term here?

A: Yes.

Q: That would have been the case throughout the 1990s
certainly?

A: Yes.

Q: Okay. Now when you say drive the world -- and take a
moment to look at the rest of that paragraph or anything
else in the document that you wish -- are you referring to
the world of the operating system business?

A: I'm sure.

Q: Are you essentially arguing here that an operating
system's success or platform success, if you will, depends
upon the quality and availability of applications that run
on it?

1290

A: That's always been true.

Q: Was it, therefore, important for Microsoft itself to
develop and sell good applications to run on its platforms?

A: If we're going to develop applications, they should be
good, and they should run on our platform, yes. They also
help drive what the platform needs.

Q: Was Windows subject to competition at the time you
wrote this memo?

A: Oh, yes.

Q: Okay. From what other platforms?

A: I think there were probably many at the time, but
certainly OS/2 would have been viewed as a competitor.
There would have been products from Sun. There would have
been historic products from Microsoft and others like DOS.
Name your Unix variety. There were -- there were a lot of
different systems. What was the -- I think there was a
layer that Lotus created at the time. I can't remember what
that was. There were many.

Q: Okay. Did these other competing platforms need the
availability of applications that ran on those platforms to
compete with Windows?

A: Yes. Maybe not the same applications, but people
wanted to write documents, people wanted to write
spreadsheets, so they probably wanted those type of
applications.

1291

There were some operating systems competing with
Windows -- and I'm talking about Windows in the most generic
sense -- including NT and what was being envisioned, where
those companies probably didn't even see Windows as
competitive with them, but if you -- but it was longer term.

Q: Do you recall having any view as to whether WordPerfect
was a good asset for Novell?

A: Nope.

Q: Do you have any view of that now?

A: Looking back in hindsight?

Q: Yes.

A: Well, it looks like they really messed it up, you know.
I really don't know what I thought at the time, but, you
know, its value isn't as much as it was.

Q: Do you recall giving any thought at the time -- I'm
talking about the time of Novell's ownership of
WordPerfect -- as to whether they could pose a competitive
threat to any of Microsoft's platforms by making WordPerfect
a network application?

A: I don't.

Q: Mr. Allchin, Exhibit 3 is what appears to be a
memorandum authored by yourself, dated July 22, 1993; is
that correct?

A: Yes.

Q: Do you recall writing this document?

1292

A: No.

Q: Any reason to doubt that you did?

A: No.

Q: Okay. You have is a heading here at number two, what
is a paradigm shift. Do you recall giving thought to the
question of paradigm shifts at this point in your career at
Microsoft?

A: No.

Q: Can you tell me what a paradigm shift is?

A: Just conceptually?

Q: Yes.

A: A rapid change to a new model that, in many cases,
could obsolete the way people are doing something or
thinking about something today.

Q: That would include the way people -- strike that.
There are paradigm shifts in the computer industry, correct?

A: Yes. My comments were related to that.

Q: Now does a paradigm shift lead to new competitive
opportunities for market entrance? I'm talking about
applications.

A: Yes.

Q: As the paradigm shifts, is there an opportunity for a
new word processing product to upset the former market
leader?

A: Yes.

1293

Q: Say same with respect to spreadsheets?

A: Yes.

Q: Let's just jump ahead a couple years in time. Do you
consider Windows 95 to have been a paradigm shift?

A: And people had already seen the graphical user
interface. This sort of just made it work.

Q: Okay. Now what did you mean by tremendous success in
the marketplace with respect to Windows 95?

A: I think we all know Windows 95 was quite a success in
the marketplace, so there isn't much more to say.

Q: Irrespective of whether Windows 95 was a paradigm
shift, did you perceive that it presented new competitive
opportunities for applications developers?

A: Yes.

Q: New opportunities for a second or third position
company to rise to the top and win a new market?

A: Is it an opportunity? Yeah.

Q: I'm talking specifically about competition in the
business applications markets, word processing and
spreadsheets.

1294

A: In order to rise, a lot of things have to be done just
right. But, yes, all change is an opportunity. Change
represents opportunity.

Every new operating system with a new set of APIs, the
more change, the more opportunity if the APPs change with it
if the operating system is successful.

Q: And Windows 95, as you said, was successful?

A: Yes, it was.

Q: And Windows 95 did represent a change over Windows 3;
is that correct?

A: Yes.

Q: In conjunction with the release of Windows 95, there
was an opportunity in the markets for word processing and
spreadsheets; is that correct?

A: There were opportunities, yes.

Q: Specifically, I mean, there were opportunities to
improve market share; is that correct?

A: Yes.

Q: There was also -- the flip side of opportunity, I
imagine, is peril for whoever's formerly number one; is that
correct?

A: Yes.

Q: In either case, whether you're formerly number one or
formerly number five, you're going to rise or fall in the
new operating system according to how well you take

1295

advantage of the new APIs in that system; is that correct?

A: That's one aspect -- certainly just one aspect. The
question is are you providing the functions that customers
want, how easy to use, et cetera, et cetera.

Q: Is it a necessary aspect to take advantage of those new
APIs in a new platform such as Win95?

A: Not necessarily.

Q: What else could you do without taking advantage of the
new APIs?

A: You could decide not to take advantage of it and say I
don't -- I don't need those, I don't want those, and still
make a very nice application. You could -- for example, you
could still use object linking and embedding and still not
use any common dialogs with inside Microsoft. In fact, I
think Microsoft did that. I don't think, until recently,
they ever used the file open dialog. I could be wrong about
that, but I don't think they used it until just recently.

Q: What about -- the fourth bullet point you use the term
shell extensibility. Can you tell me, what is that?

A: For right or wrong, the basic layer of the operating
system is referred to as a shell, and the APPs were allowed
to make additions to that user interface to be able to add
items to the context menus or to be able to add hooks
through the system. It made Windows very popular. It was
bad in a bunch of computer science ways, but it made it very

1296

popular.

Q: Okay. You said that shell extensibility was bad in
computer science ways.

A: The way it was implemented here because in the early
days -- unfortunately even recently -- if an application had
an error in it, it could take down or corrupt the user
experience overall. In other words, the application could
impact more than just it. So that's bad. You want -- you
want this nice little boundary around the operating system
that applications can't penetrate. So you write a bad
application, then you wipe out a little part of the system.
That's not good.

Q: That would be a lack of security, as you defined
security for us earlier?

A: Or resiliency, yeah.

THE COURT: Stop. Okay. We'll take a short break
and be back in 20 minutes.

A: It was a collection of API's that were common -- well,
first, it was a collection of API's that were 32-bit in
length over the 16-bit length that had existed, and that, to
the degree possible, they were common between Chicago and the
NT system. And we even created a smaller subset of those
called Win32S, I think, that was a subset of those that was a
little layer that you could put in your applications to run
on the 16-bit systems, at least that's what I think.

Q: Do you know -- strike that. Do you know why you
recommended that we should get all S -- all ISV's to write to
Win32?

Without reading the rest of the sentence, I say --
oh, acknowledge it goes on to discuss other technologies as
well.

A: Why? Because, longer term, we were going to -- at
least our dream was to move to the NT code base, and so,
writing to the common set would have those applications be
able to take advantage of NT systems along with, like, a

1298

Chicago-based system.

Q: You described, in one of your depositions, that
browsing for information was part of the original vision of
Information At Our Fingertips by the early 1990's. Do you
recall that?

A: Do I recall writing it? Saying it? I recall --

Q: Right now, do you recall testifying to that effect?

A: No.

Q: Is it, in fact, the case that browsing for information
was part of the vision known as Information At Our
Fingertips, by the early 1990's?

A: Yes.

Q: By browsing for information, you're talking about more
than just browsing on the internet, correct?

A: Yes.

Q: And, in fact, in the early 1990's, as you told us
earlier, the internet existed but was largely unknown,
right?

A: Yes.

Q: You testified at one point that you thought there were
a lot of similarities between web and local browsing. Do you
continue to believe that that's true?

A: Yes.

Q: What about network browsing? Are there similarities
between local internet and network browsing?

1299

A: Yes.

Q: Okay. What would those similarities be?

A: Well, conceptually, the only difference is where the
data is.

Q: And it was part of your own vision, I think you said,
since your early days, even as a student, to unify the views
so that the issue where the data is, is not terribly
transparent or important to the user; is that correct?

A: Yes.

Q: The ability to browse without regard to where the data
is stored, is that an ability that was valuable to ISV's?

A: Yes.

Q: And how so?

A: Less code that they would have to -- to write in order
to access a particular remote object.

Q: And they would have to write less code because a
Windows API was providing the functionality that we've been
talking about?

A: I don't know. You made a huge jump there. I don't
know if it was one API or many API's or the like, but, yes,
that some part of the operating system was providing some
help to create this transparency.

Q: Is that part of the concept of the best line of code
being the line of code that the ISV doesn't have to write?

A: Well, I didn't say that line -- that comment about

1300

ISV's. Or let me say, it doesn't relate just to ISV's. If
you don't write code, it's hard to have any bugs in it.

Q: Right.

A: And it's a lot less work, so it applies to everything.
And, yes, it would apply in this particular case.

Q: Okay. And let's look at the case. I've been asking
about ISV's kind of in the abstract. Let's look at the case
of a word processing application. What about the Windows
platform's ability to unify views would be of use to a word
processing application?

A: I'm going to be just surmising here. Do you want me
to?

Q: Please.

A: Well, in the case that you have physical places you
have to go to get something or load something, then a user
has to know where it is. In the cases that you don't need to
know that, then it would be nice that it just was completely
transparent.

In other words, if a document, for this word -- this
word processor resided on server 1 or server 2 or server 3,
whether one was in L.A. and one was in London shouldn't make
any difference to you because you don't really have to go
there physically, as a human. You'd just want the document
to be edited and then saved back. And it would be nice that
you didn't have to think about where it was stored.

1301

If you needed to know physically, like it's on this
diskette or something, then you don't want it to be
transparent. You want the system to say, "Go load tape 3,"
or whatever, "so I can get to this file."

Q: Okay. Now, as part of your work at Microsoft, you were
developing technology to provide that kind of unified viewing
to end users, correct?

A: As part of -- that was a vision, and part of the --
there were teams underneath me doing that, yes.

Q: And, as you worked on your vision, did you intend that
word processors, spreadsheets, other common applications,
would take advantage of the unified views that you envisioned
and were working to provide.

A: Yes.

Q: Was it your understanding that independent software
vendors had equal access to Windows 95 API's, as Microsoft's
own applications developers?

A: Windows 95?

Q: Yes.

A: Was it my understanding? Yeah, but I wasn't the man
making that decision.

Q: Exhibit 7, Mr. Allchin, is a series of emails, on some
of which you are a recipient and at least one of which you
are an author. And if you could take a moment to look at
these, I'll have just a few questions.

1302

A: You want me to read it?

Q: Feel free to read as much as you want. My questions
are probably going to be fairly limited and specific, and
I'll direct you to some of the language.

A: Okay. Tell me where, and I'll decide.

Q: Okay. The email down below from yourself to
Mr. Silverberg and Mr. Maritz.

A: Matitz.

Q: Mr. Maritz. Okay. Thank you. You are, at the risk of
characterizing it, complaining to him about some decisions
they have purported to have made without your input; is that
correct?

A: Yes. It looks that way.

Q: Do you remember complaining about this issue?

A: No.

Q: In Mr. Maritz's response to you, in the first line
of his last paragraph, he refers to Cairo interfaces. Do you
see that?

A: This is the third paragraph?

Q: Yes.

A: Correct.

Q: My question is actually pretty simple. And that is,
what did Cairo refer to at this time?

A: In October 3, 1993? I'm not 100 percent sure
at that time frame. It was a code name for a set of

1303

technologies that were part of NT, but, at this period of
time, I don't know.

Q: Okay. A little further down some that same paragraph,
Mr. Maritz is asking you and/or Mr. Silverberg to let us know
what would be needed for Chicago to use OLE2-based shell
interfaces, i.e., for Chicago and Cairo to have the same
API's for shell extensibility. Do you see that?

A: Yes.

Q: Do you know whether Chicago and Cairo did, in fact,
ultimately have the same API's for shell extensibility?

A: Well, I cannot remember the time frames, okay, but
conceptually what happened was the user interface team got
moved over. Was this before or after that? I don't know.
And when that happened, that was -- it got unified. Did
Chicago have OLE2 interfaces for shell extensibility? I
don't know. Did NT and -- or Windows -- I don't know whether
it would be NT 3.5 or which one it was.

Did they end up having the same or to the degree
they could have the same, between the Windows NT version and
the Windows 95? The goal was to have them be the same, but I
can't answer this.

You're taking a snapshot in time of a lot of churn
of us discussing stuff, and I don't know how it all ended up.

Q: Okay. You, in your answer, referred to a time when the
interface group went over. Let me just clarify that. I

1304

think I -- we probably know what each other means, but just
so the record is clear, you're referring to the interface
group that was in your NT group that you earlier told us
moved over to Mr. Silverberg's Chicago development group; is
that correct?

A: That's right. And I just don't remember when that took
place. It could have been after this. I -- I really don't
know.

Q: Okay. You were asked various questions by
Mr. Engelhardt about Windows 95, and I just want to make sure
the record is clear. Were you responsible, in the hierarchy
in Microsoft, for the development of the original version of
Windows 95?

A: No.

Q: Who was the person responsible for that product?

A: Brad Silverberg.

Q: And did you have any official role in deciding what
technologies would be included in Windows 95?

A: No.

Q: Did you have any official role in determining what
information would be provided about Windows 95 to independent
software developers?

A: No.

MR. JOHNSON: That concludes Mr. Allchin.

THE COURT: Thank you. Who's next?

1305

MR. JOHNSON: I'm looking at the clock, Your Honor,
trying to decide which is better. We could do -- probably,
I'd say we would do Mr. Henrich now. He's 39 minutes. And
we could slip in a short one at the end if we have time.

THE COURT: Okay. We'll try to do that.

MR. JOHNSON: Okay. Thank you, Your Honor.

Oh, I guess I should say this is Mr. Douglas
Henrich, a Microsoft executive, January 8, 2009. This is 39
minutes long.

THE COURT: Thank you. We've seen that guy
before.

MR. JOHNSON: He's the one that didn't have any
sound last time.

THE COURT: Oh.

MR. JOHNSON: Apparently the feed was mono.
THE VIDEO DEPOSITION OF MR. DOUGLAS HENRICH WAS PLAYED AS

FOLLOWS:

Q: Could you provide your full name for the record,
please.

A: Douglas P. Henrich.

Q: You were an employee of Microsoft, correct?

A: Yes.

Q: When did you begin your employment with Microsoft?

A: April of 1990, roughly. I don't remember the exact

1306

date.

Q: Was that right out of college?

A: Nope. I wish it was. I graduated from college in --
undergraduate in '81, so about nine years earlier.

Q: When did you end your employment at Microsoft?

A: Roughly September of 2001.

Q: What was your first job with Microsoft?

A: Technical evangelist was the title. It always raises a
few eyebrows. It was my job to help Novell and a variety of
technology-oriented companies write network interfaces to
work with Windows and DOS.

Q: What does that mean in layman's terms?

A: I help them support the Windows operating system, so
whatever hardware/software interactions Windows needed to run
successfully on customer, you know, equipment, if you will,
we helped other third-party players build that software. So,
for example, Novell had a very successful network operating
system, and we helped them interface that, get the physical
drivers, software drivers that made it work with Windows.

Q: Okay.

A: So whatever technical information they needed, whatever
support they needed, we helped make that happen.

Q: So, was -- as a technical evangelist, would the
software developer come to you and say, "We need help with
some issue. Can you please provide us with help?" Or how

1307

would that work?

A: It could happen either way. They could come to us,
which many people -- many software companies tried to do, and
we were a pretty small staff at that time, but primarily we
targeted what we thought were the important applications,
important software that had to work with Windows.

So, as the product team said, for Windows, you know,
to be successful, we need these industry players to work with
us, and so, you know, primarily we'd go out after them or
target them, and then they would, once that relationship was
established, clearly they would keep coming back to us for
more information. We need this. We need this. We need
this.

Q: So, when you started as a technical evangelist, were
you interacting directly with the independent software
vendors?

A: I was.

Q: Okay. What were the dates of your -- approximate dates
that you were a technical evangelist?

A: It's a hard question to specifically answer. I spent
my first -- most of the first five years at Microsoft in what
would be called a developer relations role. So, roughly the
first year, I had specific customers, specific ISV's,
software vendors, independent software vendors -- you've
heard that term, I suppose -- that I had as accounts, if you

1308

will, to really work with to get their software delivered.

I spent the next four years primarily managing
larger and larger groups of people, all working with
independent software vendors or developers, as we called
them, outside developers.

Q: Which specific vendors were --

A: Did I personally work with?

Q: Yes.

A: Boy --

Q: To the extent you know.

A: Somewhat limited with Novell in their -- purely their
network operating systems part, a company called Banyan
software, which is out of the Boston area, and then a number
of other people that did network-oriented stuff, Ungerman
Bass. I don't remember them, but they were companies that
basically made this network thing work between Windows
machines at that time.

Q: So, from approximately 1990, to sometime in, let's say,
1991, then, you were --

A: Roughly, yeah, somewhere in that time frame, maybe a
year, maybe even less that I was on the job, I then began
managing multiple evangelists.

Q: And what did that job entail?

A: As you can imagine, there were people that were working
as I was in the network area. There were people working with

1309

the database vendors. There were people working with
people -- with companies that were writing applications that
you'd be more familiar with, like Lotus 123, WordPerfect.
Borland had a whole variety of products.

Q: Okay. Lotus 123?

A: Yeah, Lotus 123, and I said Borland, and I said
WordPerfect in there, but there were different classes of
applications or software that was needed for Windows. So
some of it was low-level networking things. Some of it was
server oriented, with database products. Other portions of
it were traditional end user applications, like word
processing and spread sheets and e-mail clients, all kinds of
things.

And so we had people -- I had people in each of
these areas.

Q: Now, this group that you were managing, was that
referred to as the developer relations group?

A: At that point, it was probably just called the ISV
group or something, but it became the developer relations
group. It took on that Moniker somewhere in that time
frame.

Q: Okay. And that was sometimes referred to as the DRG?

A: DRG. Yeah, the DRG. Could be.

Q: You were the -- was your title at some point director
of the DRG?

1310

A: Yeah, at some point. I don't remember when.

Q: Okay.

A: At that point, early on, my boss, Cameron Myhrvold, was
maybe also considered, you know, the director of the DRG.
Somewhere in there I became that. I don't remember exactly
when.

Q: Do you recall approximately how many people reported to
you when you were a director?

Roughly -- and that number changed dramatically. In
'92, I would say it was about 10 to 15 people. In '93, it
was probably in the range of 80 to a hundred. In '95, '96,
it could have been up to about 7-, 800 people.

Q: What was the reason for the changes in the number of
people in your group?

A: The first two years, it was primarily technical
evangelists that worked for me, so, in '92, there was maybe
eight or ten of us as technical evangelists. And these,
again, are just real rough, ball-park numbers. In '93, it
was in the range of 75 to a hundred. And then, beyond that,
it was other groups that were reporting to me, developer
marketing, a product offering and a team called MSDN.

And that was a very large team because, as our
business grew with the software development community, we
targeted five companies, we targeted a hundred companies, and
all of a sudden we were working with millions of developers.

1311

And so we built tools and product offerings that would scale
to those different customer bases.

Q: You mentioned MSDN. Could you explain what that is,
please?

A: Msdn stands for Microsoft Developer Network, and it was
a vehicle for delivering the information and content that we
delivered one-on-one, hand -- you know, each evangelist
delivered to a software company. It was a vehicle to take
that information, package it up onto DVD's -- or CD's
at that time, and to put it online so that, you know,
millions of developers could get access to that same
information.

So, it was really trying to get the information out
as broadly as possible and to enable anybody to build a great
Windows application.

Q: Could you -- when you talk about the information that
you were delivering to developers --

A: Uh-huh.

Q: -- give some brief summary -- what did that information
look like? What kind of information were developers -- were
you giving to the developers?

A: There is no simple way to categorize the information we
were giving to developers. We -- you know, on an individual
basis, we would try to give them whatever we could figure out
or they could figure out was needed. Sometimes that was

1312

software development kits. Sometimes that was documentation.
Sometimes that was actually bringing them onto campus in a
lab where we could work hand-in-hand. Sometimes that was
access to a Windows developer that only knew the answer to
that question.

You know, again, very broadly, whatever jointly,
between them and us, we could determine would help them get a
great application built. It was our job to dig that out of
Microsoft. If you can imagine, at that time frame, nothing
was pre-packaged in these great development kits that we have
today. I mean, this was a new emerging market, and people
were trying to do things that nobody had thought of, so we
had to be real creative in terms of figuring out how to help
them get it done.

Q: So, was your group actually writing any code itself
or --

A: Yes, in the sense that we would write sample code to
demonstrate for a software company how to do something. We
didn't write Windows code. We did not write code for our
customers, other than, you know, we might assist them while
they were in the lab working on something, but it wasn't our
job to write software. That was part of Windows.

Q: So, the sample code, would it be correct to say that,
if there was a feature, say, in Windows that a developer
could take advantage of, you would -- your group would write

1313

up some sample implementation of it to say, "Here's how you
can -- here's how you can take advantage of this. Here's how
you can work with a particular interface," or something.

Would that be a correct way --

A: Rough.

Q: -- to say that?

A: I'll try to wait until you're done. Roughly, between
what we thought was capable of Windows, what the Windows team
suggested as things you could do with Windows, or what we
heard our customers, the software vendors, tell us they
wanted to do, we would brainstorm ways to do that stuff, and,
whenever it made sense, we would write sample code to
showcase that capability, if you will. And generally that
was when we thought there were maybe tens or hundreds of
other developers that would want to do the same thing.

And that actually became a core capability, a core
feature of the MSDN offering. We would pre-package on these
disks or put online lots of sample code. And if you think
about the evolution, we'd work with a few leading vendors to
test these features and to make sure that they worked and
they were exciting to them.

And, as we understood it better, we'd package it up
in a way that hundreds, thousands and literally millions of
developers could take that sample code and modify it to their
application, but technically get the right implementation

1314

started with our sample code.

Q: Where did the DRG fit within Microsoft's corporate
structure?

A: Well, it moved around a bit. Initially it was under --
I'm going to say it was under Steve Ballmer, when he ran the
Windows team, and that would be 1990, '91. At some point, it
moved under John Lazarus, who was marketing for Windows and
worked for Bill. And it was just a -- he was someone that
had bandwidth to have it underneath him.

And then, over a time, I think there was a period
there where I worked for Paul Maritz, who ran all of Windows
development in the '93, '94, '95 time frame. And then
eventually it ended up under Roger Heinen, who ran the
developer tools group, and I'm not sure where it went after
'96 or '97. It moved around again.

It was a group unlike any others in the company in
the sense it wasn't really a product team, but it was in the
product area because it was very close to the engineering of
Windows, so it could, sort of, sit anywhere from a lot of
perspectives, because primarily either Cameron Myhrvold, when
he was running it, or when I was running it, were very
independent of the product teams.

Q: So, when you say it was close to engineering of
Windows, what do you mean by that?

A: Well, we were taking out the new features of Windows,

1315

the programming interfaces of Windows that were going to be
exposed to the software development community. Those
interfaces were being written by the Windows development
teams.

Q: Would it be be fair to say that one of your
responsibilities was to try to get developers excited about
writing to the Windows platform?

A: Absolutely.

Q: And why was that?

A: A very simple belief that, if you had the best
applications on Windows, that would make Windows successful.
Customers did not want to buy an operating system. They
wanted to buy a series of applications that provided a lot of
value for them, and most of the value of Windows is provided
through the applications that it hosts and so the more and
the better and the great and the exciting Windows
applications generally promoted Windows itself.

Q: So, to get developers excited, like you said, about
developing for Windows, you needed to communicate information
about Microsoft's platform plans; is that correct?

A: That is correct. The process -- there were multiple
steps in that process. From very early on, we'd share ideas
or thinking about what the next version of Windows would
provide for them in terms of programming interfaces, to build
new applications.

1316

They'd give us lots of feedback on that. There
would be an iteration where those interfaces might change.
Then we would take those out, with a Beta release of Windows
to these software developers with tools, software development
tools, and let them start working on it, and we'd keep
iterating.

When they would find things that work, you know,
we'd say, "Hey, that's great. We'll keep moving in that
area." If they didn't work, we would then take that back to
the Windows team and say, "Fix this." or, "Is this right?"
or, "Do we understand this?"

And it was a very iterative cycle that would take,
you know, a lot of times two or three years until the Windows
release that supported those interfaces, were made public.

Q: You referred to a Beta release. Can you explain what a
Beta release is?

A: Beta release. It's very -- it's a very amorphous term.
Before you release a piece of software, you have multiple
builds of it, multiple versions, Beta versions of it, if you
will, and they all have different goals and objectives. So,
for the software developer community, we would get them
something very early of the actual operating system, but they
cared more about the programming interfaces, the software
development kit that went on top of that, that was going to
be hosted on top of that version of Windows. So that might

1317

be a developer Beta, if you will.

And there would actually be an Alpha or pre-Alpha.
There would be lots of versions of software that would come
out prior to a customer Beta, or an end-user Beta. So we'd
have early Alpha releases or what we just called builds of
Windows. A build is something -- is a version of software
that is created every day out of development.

We take a build. At some point that would be called
a Beta. At some point it would be called a customer Beta,
you know, marketing Beta, all kinds of terms for various
releases, pre-releases of a version of Windows.

Q: So, was it important to get this information, then, to
developers before the final release of the Windows product?

A: Critical. And it happened multiple years before the
final release, in most cases.

Q: Why was that important?

A: When Windows launches, you want to have the
applications launch, so we obviously would need to get them
the pre-releases of the operating system and the software
development kits and the programming interfaces well in
advance of the Windows release because it's going to take
them 18 months, two years, to potentially create a new
release of their existing Windows product that supports all
these new capabilities.

Q: Was one of your goals to get -- when a new release of

1318

Windows would come out, was one of your goals to get
developers outside of Microsoft to be taking advantage
specifically of new features in Windows?

A: That was my job. That was job number 1. That's how I
was reviewed by Bill Gates.

Q: That was actually -- my next question was just going to
be, how did you define success in your group?

A: Just as you described, the quality of the new outside
software vendors' applications that were available when that
version of Windows launched.

Q: Did you have any interaction with applications
developers within Microsoft, with the DRG?

A: Very limited. Our charter was all application vendors
except Microsoft, and Microsoft, again, has lots of product
teams. They have the Windows operating system, which is
really our platform. And then there were lots of
applications like Word and Office and PowerPoint and whatnot.
It wasn't my job to evangelize the Microsoft applications
team.

Q: You've mentioned certain I -- certain developers being
bigger and more important developers, and I don't want to
mischaracterize exactly how you said it, but something along
those lines. Do you recall saying --

A: Yeah, I did say something like that. Again, maybe a
little history is needed here. In the 1990 time frame, the

1319

number of Windows independent software vendors, ISV's, or
developers, it's probably less than 50. And it was probably
in the range of five to ten that were maybe 80 percent of the
market share in terms of applications.

So those, generically, I called the bigger ones
because, in terms of revenue, in terms of customers, in terms
of product sales, in the '93, '94, '95 time frame, they were
still, you know, very significant.

And so they obviously had a very targeted effort
from my team to get their applications early, and what I'd
call showcase or premier users of the new technology. It was
a goal for us to have those early, large, independent
software vendors to be the showcase accounts for new
technology, new capabilities of Windows.

Q: Who were some of those showcase vendors, if you will?

A: At that point in, again, the '93, '94 time frame, it
was clearly -- Lotus, I think, was number 1 and then probably
WordPerfect. Borland had several products. Micrographics
had products in the imaging -- image-editing area. There was
a whole bunch more. I can't remember them. But those were
the three or four biggest of the whole group, and there were
probably another seven or eight that were maybe a half or a
third or a fourth of the size of any of those.

Q: Exhibit Number 7 to your deposition appears to be an
email from a Jeff Theil to several recepients, including you,

1320

with subject: Forward. WP scraps OS/2 version, November 18,
1993. Do you recall receiving this email?

A: No, I do not.

Q: Do you know who Jeff Theil was?

A: I'm not sure. I think he's probably part of the
Windows team, but I don't know for sure.

Q: Do you recall becoming aware that, at some point,
WordPerfect scrapped it's OS/2 version of software?

A: Yes.

Q: What do you recall about that?

A: They stopped doing it. You know, one of my objectives
was to keep track of who was doing what, and at this point we
wanted ISV's to build for Windows and not OS/2, so we would
have kept track of this.

Q: Now, Mr. Theil writes, "I think this is a great example
of how we Kill OS/2 by sucking up ISV bandwidth. If we do it
right, the PDC, can nail -- can be the nail in OS/2's
coffin."

Did you see, as one of your objectives, getting --
by getting ISV'S to focus on Microsoft technologies, that
they could not develop or expend developer resources on other
products?

A: I didn't look at it that way. I mean, clearly, if they
were busy doing ours, they couldn't do the Mac, they couldn't
do OS/2, they couldn't do Netware, they couldn't do anything

1321

else. But I also thought we had the compelling message. We
had the compelling platform. We had the compelling consumer
demand.

So, you know, sure, it's a zero-sum game. We only
had so much cycles, but I didn't work that way. We worked to
the way of, you know, let's get these guys to write great
Windows applications.

Q: Mr. Henrich, you have been given what's been marked as
Exhibit 8, a several-page long document with the production
numbers, MS-PCA 1673786, through MS-PCA 1673792, the -- it
appears to be a Microsoft internal memorandum from Brad
Struss and yourself to Brad Chase. The subject: Chicago
evangelism draft. And a date of January 29, 1994.

Q: And page 5, here, appears to be dealing with -- one of
the bullets is, "Create marketing incentives to motivate
ISV's to support Chicago and sim-ship. Launch exposure top
ISV's September." And in all caps, in parentheses,
"critical." Off to the left of that, "How do we close?
ASAP."

Is that, I think, your --

A: I think so. I don't know if this is the final document
or if this is -- you know, it says draft on here, so if Brad
Struss had prepared this and gave it for me to review, I'm
not clear on this.

It would seem weird to me that I would have all
these edits on here -- a few edits at least that are mine
before this was actually distributed.

Q: Who would this have been distributed to?

1323

A: I don't know. Brad Chase. Besides Brad Chase, I'm not
sure.

Q: Do you recall what the purpose of the memo was?

A: To placate his politics. I don't -- I mean, it's the
kind of thing that I would never -- I would never normally
do, I mean, so this is the guy that's running marketing for
Windows, and this could have been -- there were several
periods where Brad Chase and Brad Silverberg were trying to
acquire my division, my group, and so I may have been fending
him off. I'm not sure.

Q: You may have been trying to fend off Brad Chase?

A: Correct.

Q: Why would that have been?

A: Very top level, Brad Silverberg and Brad Chase wanted
DRG reporting to them, and I vigorously fought that,
primarily because I no longer would have the independence to
do what software developers needed. Brad Silverberg would
have holed me up, put me in a cubical somewhere, and made
every message go right through him.

Q: And how do you think that would have impacted your
ability to to do your job?

A: It would have taken away my ability to do my job.

Q: Your job, as you saw it, was advocating on behalf of
developers?

A: I felt like I had two core responsibilities: Number 1

1324

is to create third-party Windows applications that supported
the new features and capabilities that we were building in
Windows, i.e., drive the success of Windows through customers
having lots of great Windows-based applications to choose
from. Secondly, was a bond or a trust with these ISV's to
really represent them, advocate for them within Microsoft.

It was a two-way street. We're asking them to do
lots of things to help us, and, likewise, I'm trying to make
sure that they get the things that they need to be
successful.

Q: Could you turn to the second page of this memorandum,
please. In the second paragraph, it states, "We can achieve
DRG's ISV goals by getting a set of quality applications that
exploit Chicago features, i.e., LFN's, shell extensibility,
OLE2, PnP Event-aware, viewers, etc., and a huge number of
compatible 32-bit applications with Win32S, Win32 on Chicago,
or Win32 on Windows NT.".

What are LFN's.

A: Long file names.

Q: What is that, in lay person's terms?

A: We're probably all familiar with 8.3, so the old MS DOS
format for file names. It could be eight characters long
with a period and then a three-letter extension. Okay?

Windows 95 must have been the first version of
Windows that allowed you to have a very friendly file name.

1325

It could be, you know, my favorite word, my favored document
dot something else, so it was something longer than eight
characters per line.

Q: And OLE2, what is that?

A: The second version of the OLE programming interfaces.

Q: The OLE that we talked about earlier?

A: Correct.

Q: What is a PnP Event-aware?

A: Plug-n-Play Event-aware, stick a new device -- you plug
something into your computer and all of a sudden it
recognizes that there is a new device there. So the event is
new device. New device is plugged in. It tells the
operating system, "I'm here." And the operating system says,
"Oh, I recognize you. Tell me more about who you are."
Plug-n-Play.

Q: Is this something that was new to Windows 95 or new to
Chicago?

A: Correct. And this -- also, you know, I believe this is
Brad Struss' list, not my list.

Q: Okay. And shell extensibility, what would that be
referring to?

A: I think that's what we referred to earlier, I assume.

Q: So, when you say this is Brad Struss' list, these
aren't necessarily the features that you saw as the most
important or compelling features of Windows 95?

1326

A: To the best of my recollection, I would say OLE2 and a
32-bit interface were my number 1 and 2 priorities. Lots of
other things were available, and for some vendors they were
interesting, some they weren't. And, again, I'd reiterate,
with Windows 95, we didn't provide a lot of new capabilities
in the programming interfaces, so we were stretched to create
interesting things.

Q: Was one of those interesting things shell
extensibility?

A: Not in my mind. OLE2 was.

Q: Do you know if people in the DRG were talking to
developers about shell extensibility capabilities of Windows
95?

A: I'm sure they were. I'm sure -- I mean, I have no
reason to doubt that those were the things that were
discussion points for every ISV.

Q: Could you turn to the next page, please. And there is
a heading or a subheading saying Measuring Success. And then
it lists five different -- five points, I guess, beginning 25
key applications shipping with Chicago, and ending with 1,000
applications shipping within six months.

We talked earlier -- at one point I had asked you
about whether -- what your criteria was for defining success
in your group. Is this a way or is this a set of criteria
that you had developed for trying to measure success?

1327

A: Could be. I would -- from this document, I'd say it
was probably more what Brad Chase wanted to have as his
success criteria.

Q: Why do you say that?

A: We're writing to Brad, and we're keeping Brad, the
vice-president of marketing, happy. But, again, those are
the right kind of metrics.

Q: Exhibit 10 is a document with production -- memo with
production numbers MS 7045839 through MS 7045842, and dated
April 7, 1994, to WWSMN attendees from Doug Henrich, Re: DRG
business plan.

Now, this memo -- have you had a chance to --

A: I recognize it, yeah.

Q: Okay.

A: I mean, it's a slight modification of the previous
one.

Q: Do you recall something called a First Wave Program
with respect to Chicago developers?

A: I do.

Q: What was the First Wave Program?

A: Very broadly, targetting the top or key independent
software vendors to have great Windows 95 or Win32
applications available for Windows 95 shipping.

Q: Exhibit 11 is a three-page document, appears to be an
email string, with production numbers MS-PCA 2405196 through

1328

true MS-PCA 2405198.

A: Okay.

Q: This appears to be an email string on which you are
copied or the recipient -- or copied in a couple of
instances, recipient in a couple of instances, and the top of
the first page, you appear to be forwarding an email. The
subject line is WordPerfect.

Do you recall this conversation?

A: I don't recall this email. I recall the topic.

Q: Can you describe what is going on.

A: WordPerfect was bought by Novell. Novell was
considered a competitor by the Windows 95 team, and we were
working very closely with WordPerfect from the DRG group, and
the Chicago folks wanted to cut them off to early builds of
Windows 95 because they saw them now as a competitor, being
part of Novell.

Q: And you appear to be copied on this e-mail, subject:
Forward. WordPerfect, from April 12, 1994 -- 19 -- excuse
me, 1995 -- strike that -- 1994.

And the text of the message says, "The meeting with
WordPerfect regarding FirstWave should happen this week. One
of the key FirstWave benefits is access to interim builds.
As it stands now, we will not be able to offer this to
WordPerfect. This will be problematic first and foremost
because it will hamper their ability to develop --" excuse

1329

me -- "to deliver a Chicago product shortly after Chicago
ships, and we need to be able to justify why Borland and
Lotus had access to interim builds as part of FirstWave but
WordPerfect could not. I think this would probably be
worthwhile discussing at your war meeting today."

Do you know what Mr. Struss is referring to here by
a "war meeting"?

A: Sure. That's every Monday morning or Monday afternoon,
or Tuesday morning, it's sometime a week where they just
review all the thorny issues in the development problems they
are having with Windows 95. So they triage bugs, whatever
things they have to get done. They just call it a war
meeting.

Q: Who would -- who would be attending these war meetings?

A: David Cole, John Ludwig, Dennis Adler, the key program
managers for Windows 95, development managers and program
managers. It's their meeting.

Q: Okay. And does this refresh your recollection as to
whether or not WordPerfect was a FirstWave member?

A: Based on this -- I mean, I'm 99 percent sure they were,
but based on Brad's comment here, he says they are.

THE COURT: Is that it?

MR. JOHNSON: That's it, Your Honor.

THE COURT: Do we time -- what's next?

MR. JOHNSON: We've actually got a 12-minute one, if

1330

we can get it up. It will be just about right.

THE COURT: Just about perfect. Twelve minutes.

MR. JOHNSON: This is portions of the deposition of
Microsoft executive Steven Sinofsky. This one was taken on
December 18, 2008, and it's about 12 minutes long.

THE VIDEO DEPOSITION OF STEVEN SINOFSKY WAS PLAYED AS

FOLLOWS:

Q: And could you state your name for the record, please.

A: My name is Steven Sinofsky. S-i-n-o-f-s-k-y.

Q: Okay. And can you just tell me what your jobs were in
1998?

A: I was in the Office team. I changed jobs four
different times throughout Office, so I just don't remember
what my titles were at specific times. I'm sorry. It's just
been a long time ago.

Q: In any event, you were an executive within the Office
group, depending on what level it was?

A: Well, I was an executive. One date I do know for sure
is in December of 1998, I was promoted to vice-president, so
that was when I became the executive of the Office team.

Q: Okay. And you had that vice-president job through at
least 2001; is that right?

A: Correct.

Q: First some definitions. What was Ren?

1331

A: Ren was an internal name used to refer to a project
that was under development in the email group. Today we
would call it Outlook. At the time, Ren was the code -- the
internal code word for that project, but I wouldn't say it
was Outlook at the time. So, it underwent a significant
metamorphosis over its course of its development, which I
think was four or five years.

Q: Nineteen and 20 are on the right-hand side. You gave a
quick description of what your job duties were. Maybe that
will help you put things in context, and maybe it won't.

A: Right. That's what I thought. That's why I got
confused because I did move -- in the summer of '94, I moved,
so I wasn't in the Office team, as you said.

Q: Okay.

A: That's why -- that's why I got confused. You stated
emphatically I was in the Office team in '94, and I agreed.

Q: No. I'm sorry. I apologize for that.

A: No. So, no, I was still working for Bill as his
technical assistant to the chairman in '94, and so that's why
this now makes sense to me.

Q: Fair enough. So, for the -- your responses earlier,
when you weren't sure what your job was, and I said I thought
up were a member of the Office team, you weren't. You were a
technical advisor?

A: Technical assistant, yes, and although vaguely unsure

1332

of what my job was, and the timing, I think I'd know better
than you.

Q: Okay. Let's go with Exhibit 18. It's FL AG 0047255
through 323. And just take a second and tell me if you
recall this document.

A: It's a very long document, and, no, I don't rerecall it
at all that well.

Q: The front page says, "Contact Stevesi." Was that an
alias that you used?

A: Yeah. I still do.

Q: And then there's a list of authors. All appears to,
again, be by aliases; is that right?

A: Correct.

Q: And did you write this document?

A: No.

Q: Did you oversee the writing of this document?

A: I think you could say I was -- I aggregated it.

Q: Okay. I wouldn't have thought to say it that way, but
thank you. I do have a few questions about it. On the
second page, one, two, three, four, five, fifth paragraph,
last sentence:

"We will integrate this into Ren further in Office
'96. Progressing through Office '98, we will make document
management more full-featured and leverage the key operating
system storage technologies."

1333

Do you see that?

A: Yes.

Q: And do you recall an effort to make document more
full-featured in the office productivity suite?

A: Well, I didn't have responsibility for it, but we had a
separate group to do document management, so presumably it
would become more full-featured each iteration of the product
cycle.

Q: And what does that mean, "document management"?

A: Well, the industry term for document management is --
means the capabilities for storing and retrieving files, much
like you use at a law firm to find documents, and that's the
industry term. And so we had a group that did features along
those lines that we referred to, apparently, as the document
management group.

Q: Okay. And do you recall what the reference to the "key
operating system storage technologies" refers to?

A: I don't. It doesn't seem to refer to anything
specifically, so my guess is, it refers to the evolution of
the operating system.

Q: Okay. Second paragraph after Communicating Between
Users and Workgroups. It says, "Leveraging the significant
messaging infrastructures is a key component of our workgroup
strategy."

A: Yes.

1334

Q: What was the workgroup strategy, as you recall it?

A: I think workgroup strategy means not a specific
strategy, but the -- how does -- how do applications work
when you can assume -- remember our discussion earlier that
computers didn't have networks and things like that, so what
would happen if, instead of giving copies of files to people
over with floppy disks, how would the use of, you know, Excel
and PowerPoint change if you had them all connected by a
network.

And so we often referred to that as the workgroup
strategy because, back then, networks only connected to the
people that were close by.

Q: Okay. And what was the significant messaging
infrastructures?

A: Well, email was just becoming a thing that people had,
and so we referred to customers that had email as having
messaging infrastructure.

Q: Okay.

A: And so something as simple today that we don't think
twice about, like mailing an attachment, was a huge
invention, and so how you did that, how you should surface it
and things were big deals to customers.

Q: Was the exchange product, was that also part of the
work group strategy?

A: No, I would call exchange part of the messaging

1335

infrastructure.

Q: If you could turn to what's page 48, there is a section
headed Document Management (Stevebr). Do you see that?

A: Yes.

Q: Who is Steve BR?

A: Steve Brandli, B-r-a-n-d-l-i, was the person on the
PowerPoint slide earlier.

Q: So he was the person responsible for the document
management group at the time?

A: Yes.

Q: I might as well ask. The second paragraph says, "With
the WordPerfect/SoftSolutions merger, we can expect document
management to be integrated into the Perfect Suite line more
so than it already is. Lotus is in a position to exploit
Notes as its document management store and has already taken
steps to do so. Microsoft is behind in this category, only
now responding to WordPerfect's Quick Finder technology."

And it goes on. Do you have any recollection of
discussions about Microsoft being behind in the document
management category and responding to WordPerfect's Quick
Finder technology?

A: I don't recall any specific discussions, but you can
just read -- what you just read makes it perfectly clear what
the status was at the time.

Q: Okay. And you don't have any recollection of any

1336

discussions, other than what you are reading; is that right?

A: I don't have any specific discussions in mind, no.

Q: Okay. And if you go to page 57, under the heading
Novell WordPerfect, it says, "The current suite of
applications in PerfectOffice are world class, and there is
reason for us to follow the progress of this suite very
carefully, especially given the strength of Novell's
networking and sales force."

Do you see that?

A: Yes.

Q: Do you recall any discussions about the suite of --
strike that. Do you know what PerfectOffice was?

A: PerfectOffice was the current suite of applications
from Novell WordPerfect.

Q: Okay. And do you recall any discussions about the
quality of PerfectOffice in that time period?

A: Well, we obviously would have had many conversations
about the feature set, the quality and the suite. It was a
competitor.

Q: Okay. And is it your recollection that, at the time
in -- whenever this document was written?

A: March.

Q: -- March of '95, that the view within Microsoft was
that the suite of applications in PerfectOffice was world
class?

1337

A: Well, the document certainly says that.

Q: Do you have any recollection beyond what the document
says?

A: No.

Q: Do you have any recollection -- did you have any
responsibility for following the progress of the
PerfectOffice suite?

A: Well, yes, I did, and, at the time, my responsibility
would have been to track the features of PerfectOffice that
were the same across all the applications.

Q: Okay. The shared code?

A: Well, it didn't have to be shared code. The features
could have been the same without sharing code.

Q: You're right. And what features were those, as you
recall?

A: I actually don't remember any -- any specific features.
I just don't.

Q: Okay. It did or did not include the file open
dialog?

A: Well, it -- my responsibility didn't -- the file open
dialog we had carved out as the special group, and so they --
I didn't manage them. They were sort of a peer -- a peer
group during this time frame.

Q: Okay. So that's an exception to your responsibility
for viewing whatever was consistent across the PerfectOffice

1338

suite; is that right?

A: Correct, which is why, when you look at this memo, you
see that one of the key authors would have been Steve
Brandli, so each of the key authors would have represented
people contributing to their part of the responsibility and
expertise to the overall framework. And, like I said, that's
why I used the phrase "aggregate," like I brought it
together. I didn't edit it. I didn't take responsibility
for the whole document.

Q: Okay. Who was responsible for the marketing decisions
for Office 95 and the release of Office 95 for Windows 95?

A: We had a series of leadership changes during the course
of development, so there were different decisions made at
different times. You know, the -- it was -- at one point, it
was Hank Vigil, who we described earlier, and then I don't
recall who took over. I don't recall the successions there
because there were several people, several leadership changes
that happened, and the organization also changed over time
within Office marketing, and since I didn't have
responsibility, it was hard to track.

Q: Okay. Do you recall who was responsible for making the
decision to ship Office 95 simultaneously with Windows 95?

A: I -- I don't -- I think that -- no. I don't recall who
made that decision. It was always the plan, from my
perspective. Certainly, from the time that I joined the

1339

Office team, that was the plan.

Q: Okay. Were you involved that decision at all?

A: No, not that.

THE COURT: All right.

MR. JOHNSON: Very good, Your Honor.

THE COURT: Very good. See everybody at 8:00
o'clock in the morning. Have a nice afternoon, nice evening,
and I'll stay her with counsel. There may be one issue I
have to address.

MR. JOHNSON: And Mr. Holley have spoken, and I
don't think we have any issues to discuss prior to that,
based on that conversation. Is that right, Steve?

MR. HOLLEY: I think that's fair, Your Honor. I
have spoken to Mr. Schmidtlein, and my understanding is that
Mr. Alepin is not going to talk about the printing
allegations as well as the licensing allegations. He's not
going to talk about things like Kerberos tickets and various
other --

1340

THE COURT REPORTER: Things like what?

MR. HOLLEY: Kerberos, K-e-r-b-e-r-o-s, is the dog
that guards the gates of Hell. But the -- we're not going to
talk about all those things, and we agreed that if he
ventured off into other areas that I thought were outside the
scope, I could object at the time.

THE COURT: Sure. I just -- I really think that's
helpful. And then tell Mr. Schmidtlein. I'm sure he could
go figure it out anyway. The only general guidelines that I
would have, unless it's inconsistent with what you all have
agreed upon, would be I don't want Mr. Alepin to say what he
thinks Mr. Gates was thinking.

On the other hand, as both sides have done and I
commend you for it, for not objecting, I think it's helpful
for the jury to know the context in which testimony is being
given. So both of you, from-time-to-time, have shown memos.
Mr. Tulchin has shown memos from Microsoft, you know, to
Novell witnesses, and vise versa. You can assess,
Mr. Johnson, which assesses the context of the testimony, so
I don't think that the experts should be opining about what's
in somebody else's mind. I don't think that they should be
the equivalent of a summation witness essentially making
closing arguments, as you guys are good.

On the other hand, I certainly -- and I'm sure it's
consistent with the other guideline, and I certainly think

1341

it's fair, as you all have done so far, to put something up
so the jury can say, "Oh, this is what the testimony is about
and why it's being testified to."

That's really the only guidelines, and I'm sure
that's consistent with what you have talked to
Mr. Schmidtlein about.

MR. TULCHIN: That's correct, Your Honor, and I
guess the only other point that I would make is that, as I
understand it now, we have heard the last of Novell's live
fact witnesses. And there may be other tapes coming in which
would have facts in it, and we also have facts in findings of
fact, but I'm hoping that we are not going to have experts
try to augment a factual record by telling the jury facts
that they haven't otherwise heard. That does not seem
appropriate to us, Your Honor.

THE COURT: That would be problematic.

MR. JOHNSON: Well, Your Honor, obviously there are
facts that we have yet to get in.

THE COURT: I know, but by the time the experts
testify --

MR. JOHNSON: Mr. Taskier --

THE COURT: -- we still --

MR. JOHNSON: Mr. Taskier --

THE COURT REPORTER: Excuse me. One at a time,
please.

1342

MR. JOHNSON: I'm sorry. Mr. Taskier says findings
agreed. We have waived other things, so, certainly, with
respect to the expert testimony, there will be other things
we are talking about, and with respect to your prior comment,
yes, we understand that. And we understand the purpose of
showing something in context, and we understand that the
experts are not to gaze into the mind of Mr. Gates and try to
suggest what lurks, there.

THE COURT: You can.

MR. JOHNSON: Thank you, Your Honor.

MR. HOLLEY: Thank you, Your Honor.

THE COURT: All right. Anything else? You're
making it awful easy for me. Okay.

MR. JOHNSON: We're trying, Your Honor.

THE COURT: I don't blame you. Okay. I guess
that's it.

MR. TULCHIN: Thank you, Your Honor.

MR. JOHNSON: Thank you, Your Honor.

THE COURT: One other thing. It's not a big deal.
I mean, I think it's not a big deal at all. An exhibit came
in that wasn't objected to. I just want to make sure that I
have not given a contrary rule. It's a minor thing. I think
it was a list of people who were discharged or something from
WordPerfect, which I thought I said could come in for
identification but it wasn't going to come into evidence. I

1343

think it actually came into evidence. It's the only thing
that's happened that I didn't really expect. It's not a big
deal at all.

MR. JOHNSON: Well, in fact, Your Honor --

MR. TULCHIN: It's a different document.

MR. JOHNSON: It is the same document. It has the
list of all the employees. Now that I think of it, David,
you're right. That document that came in was all right, Your
Honor.

THE COURT: All right. Fine.

MR. JOHNSON: There was another one that had to deal
with docking people's pay.